Wayne J. Griffin Electric, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Wayne J. Griffin Electric installed replacement substations during a large electrical upgrade at a New Hampshire office complex. An electrician was seriously injured when his face contacted an energized bus bar while he worked inside a switchgear compartment believed to be de-energized. The judge found that Griffin's work plan omitted the step needed to disconnect the electrical tie from an adjacent switchgear and that the company failed to identify the energized circuit before work began. Griffin also allowed employees to work close enough to contact the bus bar without de-energizing, grounding, insulating, or otherwise guarding it. The multi-employer and unpreventable employee misconduct defenses failed because Griffin was the electrical specialist, installed the equipment, had the relevant system information, and did not ensure its own safety policies covered inadvertent contact. Both serious items were affirmed and grouped for a $7,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.416(a)(1); 29 C.F.R. § 1926.416(a)(3)
• Outcome: Two serious electrical-contact items affirmed; grouped penalty of $7,000 assessed.
• Key point: An electrical contractor must independently identify energized circuits and protect employees from inadvertent contact, even when other project participants help plan shutdowns.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20 th
Street, N.W., Ninth Floor

Washington, DC 20036-3457

Secretary of Labor,

Complainant,

v.

OSHRC Docket No.
15-0858

Wayne J. Griffin Electric, Inc. ,

Respondent.

APPEARANCES:         

Susan G. Salzberg,
Esquire

U.S. Department of Labor ,
Boston, Massachusetts

For the Secretary

Dion Y. Kohler , Esquire

Carla J. Gunnin, Esquire

Jackson Lewis PC, Atlanta, Georgia

For the Respondent

BEFORE:    Carol A. Baumerich

Administrative Law Judge

DECISION AND ORDER

This proceeding is before the Occupational Health and Safety Review Commission (the Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 659 (c)
(the Act). On October 18, 2014, an employee of Wayne
J.
Griffin
Electric, Inc.
(Griffin)
was seriously injured when he came into contact with an
energized
bus bar during installation of a n electric
substation
for Fidelity
Real Estate Company
(Fidelity
or FREC )
at One Spartan Way
in Merrimack, New Hampshire
(worksite) .

T he Occupational Safety and Health Administration (OSHA)
began its inspection of the
Fidelity worksite
on November 21, 2014. As a result of the inspection,
OSHA
cited Griffin for
two
serious violations of OSHA’s construction electrical standard. The
two
item
serious citation 1
was issued
to
Griffin on April 8, 2015 ,
for a total proposed penalty
of $ 14,000 . 00.

Griffin
filed a timely notice of contest, bringing this matter before the Commission. The S ecretary filed a complaint. In its
answer to the c omplaint, Griffin asserted the affirmative defenses of unpreventable employee misconduct and multi-employer worksite. A
hearing was held in
Manchester, New Hampshire on March 15-16, 2016.

Both p arties filed post-hearing and reply briefs .

For the reasons discussed below, the citation items are affirmed and a
grouped ,
total
penalty of $ 7 ,000.00 is assessed.

Jurisdiction

Based upon the record, I find that at all relevant times
Griffin
was
engaged in a business affecting commerce and was an employer within the meaning of sections 3(3) and 3(5) of the Act . (Ex . J-16 , stipulations 1-3 ). I also find that the Commission has jurisdiction over the parties and subject matter in this case.   

Ba ckground

The Project

Griffin was hired to implement a
significant
update to
the electrical systems of
two
Fidelity
build i ngs. Fidelity ’s emergency power upgrade project involved
replacing
the
existing
electrical substations 2
and
installing
generators
in the Fidelity buildings located at
One Spartan
Way
and Two Contra Way ,
in Merrimack, New
Hampshire ( Fidelity p roject). ( Tr. 39, 203-04;
Ex. J-1;
Ex . J-16 , stipulations 4-6 ). The s ubstations were the primary
power
source
for the two buildings . ( Tr. 46 ) . Fidelity , the property owner,
required
that
the project be completed with as little disruption as possible to the
building
occupants .

(Tr.
69 ).

Fidelity u sed
CBRE as its onsite property management company. (Tr. 256).
Richard Gustafson ,
CBRE ’s
senior facilities manager for the New Hampshire Region ,
was responsible for
the Fidelity account . Mr. Gustafson
wa s not a licensed electrician
or engineer . (Tr.
132, 140,
299-300). Ed Smith was CBRE’s chief engineer for the One Spartan Way building. He had worked at this building for a total of thirty-eight years – nineteen years as the chief engin eer. Mr. Smith
was
not
a licensed
electrician
or engineer . (Tr. 141, 159-60, 261-62).
One of the seven engineers
Mr. Smith
supervised was a licensed electrician. (Tr. 281 .
See
Tr. 133-34 ).

The Fidelity project was managed by Jones, Lang,
LaSalle
(JLL). JLL’s head project manager was Richard Ventura.
(Tr. 132, 140; Ex. R-1).

The electrical engineer of record who designed th e emergency power
systems
upgrade
for Fidelity was
John Lane
of
Facilities Engineering Associates, P.C. ( FEA ) . Mr. Lane
prepared
the
project specifications, drawings, and schematics .

( Tr. 141 -42 , 254 ;
Ex. J-4 p. 1;
Ex. R-2 p. 14).

T he construction manager for the
Fidelity
project
was
Gil bane Building Company (Gilbane ) .

( Ex. J-3).
Greg Emerson was Gilbane’s senior project manager.
(Tr. 131, 134; Ex. R-1; R-2).

G ilbane
contracted with G riffin
to dismantle the old
electrical
equipment
and
install
the new substations and generators
because of Griffin’s
expertise in the installation of electrical substation equipment. 3
(Tr.
41,
237,
239,
241-42; Ex. J-3).

Griffin was
t o remove generators and switchgears
that were over
thirty
years old
and
replace them with new ,
larger units for each building.
(Tr.
38- 39, 203-04). Piping and connections to the generators inside and outside the buildings were dismantled in preparation for installation of
the
new generators. (Tr. 206). Over the course of the Fidelity project
nine
existing switchgears were dismantled and removed
from the two buildings and seven new switchgears were installed . (Tr.
40.
See
Tr.
205).

The one-year project began in the fall of 2013.
(Tr.
237, 240).

Griffin’s Project Management and Employees

T hroughout the project,
at any given time,
t wo to eight
Griffin
employees worked
at the Fidelity worksite . ( Tr.
240 ) .
At the time of the accident, Griffin had been working at the Fidelity project for almost a year . ( Ex. J-3;
Ex. J-16 , stipulation 4 ).
The accident that injured
Griffin’s
employee,
electrician
Mr.
J , 4
occurred
on October 18, 2014 ,
at the
One Spartan W ay
building. ( Tr.
84-85, 106 , 129 ) .

Keith
Piechocki ,
a licensed journeyman electrician,
was
Griffin’s
onsite project foreman. Mr. Piechocki had worked at Griffin for
eighteen
years. He had worked as an electrician for almost thirty years.
(Tr. 37-38, 44, 118-19).
Mr. Piechocki was responsible for the
dis assembly, installation, and assembly of the switchgears. (Tr. 43-46).

Mr. Piechocki supervised
all Griffin employees
at the worksite
and occasionally assisted with installation . (Tr. 44 , 224 ).

Brian
Connerton , a licensed electrician, was Griffin’s
electric al
foreman .
He
reported to Mr. Piechocki and had worked at Griffin for
fourteen
years. Mr.
Connerton
had
worked
on the Fidelity project from
the
beginning . He
was
the primary supervisor
for the
Griffin crew dismantling and
install ing the equipment .

(Tr. 46 , 20 2-04, 206-07 , 209 ).
Mr.
Connerton and his crew
dismantled and install ed the new switchgears for substations
SS41A ,
SS41B ,
SS42A ,
SS42B , and installed the bus duct between SS41A and SS41B . (Tr. 207 -08 ). Dismantling
each
switchgear
took several days. (Tr. 205).

Mr.
J
was a licensed journeyman electrician
who
had worked
at
Griffin for
five
years . He
had
worked
at
the Fidelity
project
worksite
for several months. ( Tr.
44, 129 ).
Mr.
J
was part of the
Griffin
crew that installed the switchgear s . (Tr. 204, 208).

Wayne Pease , a licensed electrician,
was
Griffin’s senior project manager.

Mr. Piechocki reported to Mr. Pease.
( Tr. 82, 249-50 ). Mr. Pease had worked for Griffin for
twenty-five
years. ( Tr. 236 ) .
Mr. Pease was responsible for managing the Fidelity project, making sure the products (switchgears and generators) were purchased, delivered, and installed correctly. (Tr. 236-37).

In October 2014,
Michael Weider
was
Griffin’s
c orporate
s afety
d irector . He
supervised
five
safety professionals. (Tr.
171, 173) .
Mr. Weider had worked for Griffin for approximately nine years . He
trained employees on electrical safety, voltage t esting,
proper use of electrical
equipment,
electrical
hazards ,
and
other
worksite
safety
matters, including confined space and asbestos removal . (Tr. 174-76). H e occasionally visited worksites
to
observe
for
compliance with Griffin’s safety policies.

(Tr.
192-93 ) .
Mr. Weider
was not a trained electrician . (Tr. 173, 175, 177).

Drawings ,
Specifications ,
and Plaques

The
Fidelity
p roject ’s
construction draw ings and
job
specifications , which
showed the
detailed
installation plan for the new substations
and generators ,
were
always
available
at the worksite’s “print table”
for
anyone to reference . (Tr. 208-09 ; Ex s .
J-1,
J-2 ).
The job specifications 5
were frequently
referenced
by
electrical foreman
Connerton and
project foreman
Piechocki
throughout the project . (Tr. 51, 208-09, 211; Ex. J-1).
Mr. Connerton testified that
he
regularly
reviewed the
specifications
and drawings
“to make sure we put the right sections together and we installed the pipe in the right place.” (Tr.
2 08-09). Mr. Piechocki reviewed them
“ to have a guide to where the equipment was ,
what was coming out, what was going in, what was being permanently eliminated and what new was going in.” (Tr. 47) .

The job specifications, a t
section
1.13 A. “Transformer and Substation Replacement,”
state “[t]he se projects will be implemented concurrently and prior to the installation of the emergency generator.” (Tr.
51,
211; Ex. J-1
p . 30
section
1.13 A.1). “ The substations have M ain -T ie -M ain
arrangements
and this is to be used to allow implementation of the project, thereby minimizing the
premium time, although
some premium time work will be required.” (Tr.
51,
211; Ex. J-1
p . 30
section
1.13 A.2).

Main-Tie-Main mean s
two of the substations at One Spar tan Way were
connected together with a tie system. (Tr. 24 3).
A tie
b reaker is a circuit breaker associated with providing power to another unit. (Tr. 46).
The connected substations we re designated as
SS41A and SS41B .
(Tr. 243).
Mr. Connerton explained that “Main-Tie-Main” means there is a tie
switch breaker between the two main breakers. (Tr. 211). Mr. P iechocki also testified that a Main-Tie-M ain system indicates there is a tie
breaker that connects the
SS41A
and
SS41B
switchgear . (Tr. 51-52 . See
Tr. 243 ).

The
Fidelity
project’s construction drawings included a “One Spartan Way, One Line SS41A&B Part Plan” issued August 22, 2013. (Ex. J-2
p . 5).
This plan
included a page with
two one-line
schematics of
SS41A and SS41 B. (Tr. 221- 22; Ex. J-2
p . 5).
Senior project manager
Pease explained the
schematic at the top of the page
showed the layout of the s ystem being dismantled ; the bottom
schematic
showed
the
layout of the new system being installed. (Tr. 244-45 .
See
Tr. 54, 160-61 ).

The schematics illustrated the differences between the old and new system s . ( Tr. 54,
160-61,
244-45;
Ex. J-2
p . 5).
Key differences between the old and new systems were
the different locations for
breakers and the addition of a tie
breaker
switch . (Tr.
222 ; Ex. J-2
p . 5 ).
T he new switchgear
also
had
extra
loads from substations that had been dismantled and not replaced, an
automatic transfer switch ( ATS ) ,
and
a
generator on the substation. (Tr. 54 ; Ex. J-2
p . 5 ).
Mr. Pease
stated the diagram for the new system
showed a “hard-bolted connection between SS41A and SS41B by
way of a bus duct . ”
(Tr. 245).
A
bus duct is a n encapsulated protective outer
metal
enclosure
that contains metal bars t o
bring power out from one
substation –
SS41A
–
to
another
substation –
SS41B . The bus duct is operated by tie breakers. (Tr. 46 , 112 ).
The schematic for the new substati ons showed the electrical connec tion , the bus duct,
between
SS41A
and
SS41B , which was labelled as “3,000
a [ mp ] , 3P ,
3W
BUSDUCT .” (Tr.
54- 55 , 112 ; Ex. J-2 p. 5 ).
Mr. Connerton’s crew installed
switchgears SS41A and SS41B and the
bus duct
connection
between
SS41A
and
SS41B . (Tr. 20 7-0 8).

Additionally, two placards were affixed to the
SS41B
switchgear
equipment
by the
equipment
manufacturer ,
Square D 6 ,
before it was
delivered
to the Fidelity worksite.

(Tr. 56 -57 , 61 -62 , 64 ; Exs.
C-1, C-2 , J-17 stipulations ).
One placard was
a diagram ,
affixed to the SS41B
equipment,
which show ed
the breakers and connections between
SS41A
and
SS41B . (Tr. 57-58 ; Ex s .
C-1 , J-17 ).

A ccording to
project foreman
Piechocki ,
the
placard’s
diagram
showed the potential for an electrical connection between
switchgear
SS41A
and
switchgear
SS41B
through the tie bus .

(Tr. 57 - 61 ; Ex. C-1 ). Mr. Piechocki st ated th at in n ormal operations
there would still be
an electrical connection between SS41 A and SS41B, even
when
the
open
tie
breaker B
switch
itself had no power . (Tr. 60 -61 , 68 , 161 ; Ex s .
C-1 , C-2 ).
The
second placard
affixed to
the
SS41B
equipment
was a list of
written instructions
that explained the sequence of opening
breakers for lockout and normal operations. ( Tr.
66- 6 8, 163-64 ; Ex s .
C-2 , J-17 stipulations ). An early draft version of these two placards was
included in the
manufacturer’s
early submittal documents , which Mr. Pease and
Mr. Piechocki reviewed in January 2014. (Tr. 61 -62 ,
65 ; Ex.
J-4
p. 7 ).

Method of Procedure (MOP)

The
Method of Procedure (MOP) was the written proce dure
used
for
planned
shutdowns
at the Fidelity
p roject . (Tr. 155-56,
290). The project ’s
electrical shutdowns were planned to minimize the impact on building activities.
Each of the approximately
sixty
shutdowns at the Fidelity project
used an MOP.
(Tr. 69).
P roject foreman
Piechocki
stated
that Griffin’s employees were to follow the
“proper
safe
method ”
outlined in
the
MOP. (Tr. 120).

Mr. Piechocki prepared t he initial draft of each MOP. Each MOP was discussed at project meeting s
to ensure that all necessary steps in the shutdown were included, with
meeting participants
providing suggestions and edits to th e document. (Tr. 69, 142-43).
Mr. Piechocki stated that MOP meeting participants made non-substantive suggestions regarding typos , punctuation,
and spelling errors ,
and substantive suggestions , such as
areas in the Fidelity building where people would be working
and
Fidelity did not want the electricity “shut down.”
(Tr. 157-58). Importantly, Fidelity required that only Fidelity or CBRE
were
allowed to open the circuit breakers. (Tr.
80,
155-56).
The
MOP
project meetings included representatives from Fidelity/FREC, CBRE, Gilbane,
Griffin,
FEA, 7
and Schneider Electric. 8
( Tr. 69, 72, 138-42;
Ex. R-2
p . 14).
Mr. Piechocki was the only
regular
Griffin representative at the
project meetings . 9 (Tr.
72-73 ) .

MOP-51
was
the proce dure
for the
October 18, 2014
planned shutdown . It
had been
developed
over a
three-week period
at several
project
meetings .
(Tr.
69,
72 ,
140,
142-43 ; Exs.
J-6, J-7).
The purpose of MOP-51 was to coordinate the
electrical
outage and planned work. (Tr. 75).

A t t he
October 7, 2014
project meeting , where MOP-51 was discussed,
the attendee roster s hows
twelve
individuals attended the meeting ,
with an additional
nine
listed
individuals
who
did not attend. (Tr. 140; Ex. R-2
p . 14). The
twelve
attendees
included one Griffin
representative ,
project foreman
Piechocki; one FEA
representative ,
electrical engineer John
Lane; three Gilbane
representatives;
and
seven
Fidelity/ FREC 10

representatives . The Fidelity / FERC
representatives
included CBRE
chief
building
engineer
S mith ;
a licensed electrician in charge of Fidelity’s data center
John Iannuzzo;
and
a Fidelity
in-house electrica l engineer
Bill Hart . (Tr.
140-4 3 ;
Ex R-2
p . 14 ).
Even though Griffin’s senior project manager Pease was listed as a possible attendee, he did not attend any meetings for MOP-51. (Tr. 72-73, 255; Ex. R-2 p.14).

At the project meetings,
Mr. Piechocki project ed
the draft
of
an
MOP on to
a
screen and read through each step to elicit any necessary modifications
from the attendees . When asked if Mr. Lane reviewed and evaluated
any
MOP during a project meeting, Mr. Piechocki stated, “I would assume. I don’t know for a fact if he did nor did not. But they were there.” (Tr. 142 -43 ).

Mr. Piechocki
sent
the final
version of MOP-51 ,
for
review,
t o
his immediate superior, senior project manager
Pease ,
and
to Griffin’s corporate safety director
Weider, with a copy
to
electrical foreman
Connerton, on October 16, 2014 .

( Tr.
85 ;
Ex. J-9 .
See
Tr. 69, 89).

Mr. Pease testified that he ha d
“zero” role in the development of MOP-51 and “zero” knowledge of the
development of MOP-51 , even though he was Mr. Piechocki’s supervisor . (Tr. 249).
Mr. P ease testified that no one monitored Mr. Piechocki in the development of MOP-51. Mr.
Pease, a licensed electrician, did not check
the
project specification s
or drawings or ask Mr. Piechocki whether the SS41A tie breaker was open
and locked. Mr. P ease did not ask Mr.
P iechocki why there was no step in MOP-51 for de-energizing the SS41A tie breaker.
(Tr. 249-53 .
See
Tr. 107 ).

Corporate safety director Weider testified that he had no role in supervising Mr. Piechocki in the development of MOP-51 .
(Tr. 179).
Mr. Weider
wa s not an electrician. (Tr. 173). Mr. Weider testified that he reviewed MOP-51 to determine what hazards each step presented and what personal protective equipment was needed. (Tr. 195). He did not discuss with Mr. Piechocki whether all live sources had been identified. (Tr. 182).

During the MOP-51 development process Mr. Piechocki was not supervised by anyone in Griffin management, even though Mr. Piechocki had never before worked at a worksite where Griffin did not
have complete
control
of
the breakers to de-energize the electrical equipment. (Tr.
107, 130,
154).

The focus of the planned shutdown
for October 18, 2014,
set forth in MOP-51 ,
was for
Griffin
to
install the end section on
switchgear
SS41B and relocate the
temporary
connections
to a permanent circuit breaker
in the newly-installed end section . 11
( Tr.
70 -7 2, 92-93 , 105 ; Ex. C-4 ).

MOP - 51 included steps that noted
certain bre akers must be switched o ff to de-energize
connection s
–
the breaker s
for SS41B and SS42A
–
but no step
to open t he
tie
breaker SS41A. 12
( Tr. 73;
Ex s .
J-6;
J-9).

After the accident ,
MOP- 54
was developed to finish the work that had
begun
on October 18, 2014 . MO P -54
included a step to open the tie
breaker
SS 41A. (Tr. 110; Ex. J-8
p . 4).

October 18, 2014 One Spartan Way
Planned S hutdown

Mr. Piechocki was in charge of the shutdown
on October 18, 2014. T wo Griffin crews w orked
in
the
O ne Spartan Way
building ’s
electric al equipment
room ,
where the substations and switchgears were located
for the October 18, 2014 shutdown .
Project foreman
Piechocki and
electrical foreman
Connerton
discussed the work plan before the day of
the shutdown. (Tr.
96,
228 -29 ).

For the October 18 shutdown,
Mr.
Connerton
was assisted by
two
licensed
Griffin
electricians
to
work on
substation
SS42A .
(Tr. 88-89 , 228 ).
Mr.
Piechocki
assigned
electrician
Mr.
J
to work with him on
substation
SS41B . (Tr. 88).
The room
where both crews worked
was rou ghly
fifty
feet by
one hundred
feet. (Tr.
166).
Mr.
Connerton’ s
crew
was
about
twenty five
to
fifty
feet away from
Mr.
Piechocki
and Mr.
J . There were
two pieces of switchgear equipment
between the
crews that
blocked
Mr.
Connerton’s view of
Mr.
Piechocki and Mr.
J .
(Tr. 166 , 233 ).

Before
starting work
that day ,
Mr.
Piechocki reviewed MOP-51 with Griffin’s employees,
CBRE chief
building
engineer
Smith, and two FREC
electricians

(Tr.
76-77,
96; Ex.
J-6 ). To start the shutdown, t he FREC
electricians

transferred
the
building’s power
source
to the generators . (Tr. 97).

Step 3
of MOP -51 stated “CBRE to open breaker Griffin to LOTO
[lockout / tagout]
breaker.” (Tr. 97, Exs.
C-6, J -6 , J-7).
Step 4 of
MOP-51 stated “Griffin to test SS41B for power.” (Exs.
J-6
p .
4).

Mr. Smith, following the steps in MOP-51,
open ed
the
main circuit
breaker
to SS41B. Mr. Piechocki observed Mr. Smith open the main
circuit
breaker . 13 Mr. Piechocki
then
locked
out
the breaker in
its
open position, and kept the
breaker’s
kirk
key in h i s p ocket. (Tr. 97, 99,
166,
277).
Wearing a “live work suit,”
Mr.
Piechocki then verified that SS41B was off by testing ,
with his multi-meter and proximity meter , the end section main busing and the wiring in the compartment that Mr. Piechocki and Mr. J “were going to come in contact with . ” (Tr.
1 02 ,
See
Tr.
99-10 2 , 152 ).

While Mr.
J
was installing
b us bars at the end of the
SS41B
cabinet, Mr. Piechocki was working
approximately
fifteen to twenty
feet away remov ing the temporary wiring at
the back of the SS41B
switchgear
tie
breaker
compartment . The wires were bolted to a stud in the back of the SS41B
switchgear
cabinet . The cabinet was very narrow. ( Exs.
C-4, C-5 ).
Mr. Piechocki
used his proximity tester to
check the
bolts
that he would be loosening in that c abinet.

Lying
on his stomach ,
Mr. Piechocki
attempted , with no success,
to loosen the bolts holding the wires .

Mr. Piechocki
then
asked Mr.
J
to assist him
with th is
task . Mr. Piechocki moved to the other side of the cabinet to hold the bolt with his wrench while Mr.
J
attempt ed
to loosen the bolt from
inside the cabinet . Then
to get better leverage,
Mr. J.
got up on his hands and knees to
lean in to loosen the bolts. At that moment, his face contacted the energized bus bar that was in the upper area of the c abinet.
Mr. Piechocki pulled Mr.
J
off the
energized
bus bar. Mr.
J
was seriously injur ed with disfigurement to his jaw, which required
plastic su rgery. (Tr.
105- 08,
152-54,
230 , 371 ).

After the accident,
MOP-54 was implemented
on
November 1, 2014 to finish the work that was started
on October 18 , 2014 .

MOP -54
included
the
step to open the tie
breaker for the connection from SS41A, which had been missing in MOP-51 . (Tr. 110; Ex. J-8
p . 4).   

D iscussion

The Secretary’s Burden of Proof

To establish a violation of an OSHA standard, the Secretary must prove that: (1) the cited standard applies; (2) the terms of the standard were violated; (3) one or more employees had access to the cited condition; and (4) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition. Astra Pharm. Prod s .,
Inc. ,
9 BNA OSHC 2126, 2129 (No. 78-6247, 1981),
aff’d in relevant part,
681 F.2d 69 (1st
Cir. 1982).

C onstruction standards apply to Griffin’s work at the Fidelity
p roject

The Secretary asserts the Fidelity
p roject is construction work as
set forth in
29 C.F.R. § 1910.12 (b) , which defines construction work
as “work for construction, alteration, and or repair.” (S.
Br.
p .
21). In determining whether an activity is construction or the maintenance of existing equipment, the Commission has held that projects that are improvements ,
non-routine,
lengthy ,
and of cons iderable scale or complexity to be
construction
activities . Brand Energy Solutions, LLC , 25 BNA OSHC 1386,
1387
(No. 09-1048, 2015) ;
Ryder Trans p . Servs.,
24 BNA OSHC 2061, 2062 (No. 10-0551, 2014) .

Here the project lasted for approximately one year,
was
an upgrade to the existing equipment, and was the first time the equipment had b een replaced in over
thirty
years.
(Tr.
39-40, 262-65;
Exs.
J-1, J-3, J-16 ). Griffin does not dispute that the Fidelity project was construction activity. The nature of this project was l engthy , an improvement to the
existing equipment, and not routine. I find the work at the Fidelity project was construction.

Citation 1, Item 2
– Alleged violation of 29 C.F.R. § 1926.416(a )( 3)

This item alleges a serious violation of 29 C.F.R. § 1926.416(a )( 3), which states:

Before work is begun the employer shall ascertain by inquiry or direct observation, or by instruments whether any part of an energized electric power circuit, exposed or concealed, is so located that the performance of the work may bring any person, tool or machine into physical or electrical contact with the
electric power circuit. The employer shall post and maintain proper warning signs where such a circuit exists. The employer shall advise employees of the location of such lines, the hazards involved ,
and the protective measures to be taken.

The Secretary asserts Griffin did not ascertain whether
the
bus bar
located
in the SS41B switchgear cabinet where employees were scheduled to work was energized.
(S. Br.
p . 26).

Griffin
asserts it had no knowledge that an energized circuit was in the employees’ work area, that it
had
relied
up on
F idelity
to determine
which circuit breakers had to be opened before starting work, and that employee
exposure was the result of unpreventable employee misconduct.
(R. Br. p. 22, 25).

For the following reasons, I find the Secretary has met hi s
burden and established that Griffin did not ascertain
prior to beginning work
that
an electrical power circuit was
energized and
located such that employees were exposed
to electrical hazards when working i n
the
SS41B
switchgear tie breaker compartment.

The sta ndard applies

As discussed above, Griffin’s work at the Fidelity project was construction work. The cited standard applies.

Employee s were exposed to the hazard

Both
project foreman
Piechocki and
electrician
Mr.
J
were exposed to the hazard of electric shock
from the energized bus bar while working in the
SS41B
switchgear
tie breaker
compartment. Mr.
J ’s face
contacted
the energized bus bar while working
to loosen bolts in the
SS41B
switchgear
compartment. The Secretary has established employee exposure to the hazard.

Griffin did not comply with the requirement s of 29 C.F.R. § 1926.416(a )( 3).

The
Secretary asserts that Griffin did not ascertain by either inquiry, direct observation, or with instruments whether any part of the energized electric power circuit was located so that work could bring the employee (or
tool or machine ) into contact with the electric power circuit. (S.
Br.
p .
26) . I agree.

Griffin asserts that it did make reasonable inquiry into whether an energized power circuit was in the work area. Further, Griffin asserts
that
the standard does not require
that
it use every possible means to discover energized circuits; it must only take steps that are considered reasonable by industry practice. (R. Br. 19).

To support its assertion that it made a reasonable attempt to find energized circuits, Griffin relies primarily on the MOP review process at the project meetings. (R. Br. 19). Griffin states that industry experts attended the MOP meetings and
that
no one identified there was
no
step to open the tie
breaker circuit and de-energize the bus bar before
employees
work ed
on
the SS41B
switchgear . This argument is unsound
for three reasons .

First, Griffin presented no evidence to show that the
MOP
meeting
process was
representative of industry practice.
See generally, Cleveland Consol., Inc.,
13 BNA OSHC 1114, 1117 (No. 84-0696, 1987 )( where a standard prescribes employer conduct in specific terms that are not vague, industry practice is not relevant). Second, Griffin presented no evidence that anyone attending the
Fidelity
project
MOP
meeting was reviewing MOP-51 to determine if every energized circuit had been identified. Finally, Griffin was in the best position to determine wh ich
circuits were energized , as Griffin had
installed the new system and knew precisely what components had been installed.

Griffin had been specifically selected by the c onstruction manager ,
Gilbane ,
because of its
expertise
in installing electrical systems .

Griffin essentially asserts that ,
instead of supervising Mr. Piechocki’s preparation of MOP-51 or reviewing MOP-51 for compliance with Griffin’s safety policies,
it
had
relied
up on
the various MOP
meeting participants
to determine
if
G riffin’s
s afety procedures had been included
and every energized circuit accounted for . 14 Because Griffin did not task the
electrical engineer who designed the project
or any of the other participants at the project meetings with determining
whether
every energized circuit was identified in MOP-51,
Griffin’s
reliance
on th e MOP
process for that result
is irresponsible.

Griffin also assert s
that
CBRE
chief
building engineer
Smith
did not identify the unaccounted-for energized circuit even though he had
thirty-eight
years
of experience with building’s previous electrical system.
Griffin’s assumption that Mr. Smith was carefully reviewing MOP-51 to determine if all energized circuits were identified is also irresponsible. Mr. Smith
wa s not a licensed electrician and he had no experience with the new
equipment and electrical
system that Griffin was installing. He simply opened or closed a breaker as listed in the MOP.

Griffin
further
asserts that
project foreman
Piechocki’s review of MOP-51 before starting work on October 18, 2014, constituted adequate inquiry into what circuits were energized. In the context of the unique challenges present at this worksite,
Mr.
Piechocki’s review of MOP-51 that morning was inadequate and noncompliant with the
cited
standard.

Mr. Piechocki had never before worked at a worksite where Griffin did not
have complete
control
of
the breakers to the electrical equipment
its
employees would work on.

That morning,
Mr. Piechocki was
simply
reading through the procedure he had drafted ,
which no one at Griffin
supervised or
reviewed for safety compliance. Reading through a procedure is not an inquiry into whether
the SS41B
switchgear
was still energized through the bus duct.

Griffin
contends
that both Mr. Piechocki and Mr. J used the proper equipment to test
the
SS41B
switchgear
equipment . It appear s
the equipment
present
at the worksite
was adequate to test for an energized circuit .

H owever, to be effective
and compliant , all the circuits that could be contacted during the work task must be tested. The testing conducted by Mr. Piechocki in
the
SS41 B
switchgear compartment
was inadequate to ascertain whether there was an energized power circuit
that could be contacted
in the
employee’s
work area . Mr. Piechocki’s testing did not include areas of potential inadvertent contact
as required by the cited standard . 15
(Tr. 102 ,
105, 116, 126, 152 ).

No one tested the energized bus bar in the SS41B
switchgear
compartment to determine if it was energized.

In addition, Mr. Piechocki
testified
that
on October 18, 2014,
he and Mr. J. were to follow the
proper
safe
method
for work
as it was set forth
in MOP-51 ,
which was
specific to this worksite. 16 Mr. Piechocki testified that
because it was not a listed step in
MOP-51,
electrician
Mr. J was not required to test anything
or
wear any personal protective equipment.
(Tr. 100, 106-07, 120).

T he SS41A tie
breaker
was not
opened and
physically disconnected from the bus, t herefore
the bus bar, located in the SS41B
switchgear
compartment ,
was still connected to the SS41 A switchgear
via the bus duct
an d
remained
energized. (Tr. 52, 55, 222 , 245, 326 ). The only step Griffin took to
inquire whether there was an energized power circuit in the work area w as
project foreman
Piechocki’s preparation
of
MOP-51. Mr. Piechocki’s preparation of MOP-51 was not supervised by any Griffin manager to ensure safety compliance and
to
determine if all energized circuits had been identified before
Griffin employees began
working in the SS41B
switchgear
compartment.
I find this was not a reasonable effort to ascertain whether there were any energized circuits that could be contacted by its employees during the October 18
planned
shutdown. Griffin did not comply with the standard’s requirement.

Kno wledge is e stablished

The Secretary asserts that Griffin had both actual and constructive knowledge of the violative condition. The Secretary must prove
that
the employer either knew, or with the exercise of reasonable diligence could have known, of the violative condition . Summit Contrac tor s, Inc. , 23 BNA
OSHC 1196,
1207
(No. 05-0839,
2010)
aff’d , 442 F. App’x 570 (D.C. Cir. 2011) (unpublished)
( Summit ).

A supervisory employee’s actual knowledge or constructive knowledge can be imputed to the employer. N
&
N Contrac tor s, Inc. , 18 BNA OSHC
2121, 2123 (No. 96-0606, 2000),
aff’d ,
255 F.3d 122 (4th Cir. 2001).

Constructive knowledge is imputed
where a supervisory employee
knew or sh ould have reasonably known about the safety violation.
P. Gioioso & Sons, Inc. v. OSHRC,
675 F.3d 66, 73 (1st Cir. 2012)
( Gioioso
II ) ,
citing
Cent. Soya de P.R., Inc. v. Sec'y
of Labor ,
653 F.2d 38, 40 (1st Cir.1981)
( Soya )
( where two supervisors in charge of facility knew of the hazard, the
supervisory employees ’ knowledge
of the hazardous condition existing within the scope of their supervisory responsibility ,
was properly imputed to the employer);
Simplex Time Recorder Co. v. Sec'y
of Labor ,
766 F.2d 575, 589 (D.C.
Cir.
1985) ( Simplex )
( finding employer had constructive knowledge of
safety violation based on physical conditions and work practices that were “readily apparent” and
that “indisputably should have been known to management”).

Knowledge is directed to the physical conditions that constitute a violation. The Secretary need not show that an employer understood or acknowledged that the physical conditions were hazardous. Phoenix Roofing, Inc. , 17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995 )
( Phoenix ) ,
aff’d ,
79 F.3d 1146 (5 th
Cir. 1996).

Actual Knowledge

The
Secretary asserts
that
Griffin had actual knowledge of the electrical connection between SS41A and SS41B through its project foreman Piech ocki . ( S. Br.
p p. 28-30 ).

I agree.

Griffin asserts it had no actual knowledge the bus bar
in the
SS41B
switchgear
c abinet was energized and posed a hazard
to Mr. Piechocki and Mr. J . Griffin asserts that if Mr. Piechocki had known of the potential for a live connection he would have taken action s to de-energize the connection .
Further,
Griffin asserts Mr. Piechocki’s paperwork demonstrates he did not expect to work on any live circuits that day.

(Resp. Reply
Br. p . 2).

I find
that Mr . Piechocki had actual knowledge of the electrical connection through project specifications,
schematics,
drawings, and
d iagram placards attached to
the
SS41B
switchgear
equipment. (Tr. 51, 53, 208-09,
222,
241-42, 244-45 ;
Exs.
J-1, p. 30; J-2, p. 5;
J-17;
C-1; C-2 ). Mr. Piechocki was an experienced licensed electrician . He c ould read electrical specifications. (Tr.
47, 51, 53 ). The schematics and specifications
illustrating the connection were
onsite and always available. (Tr.
47, 208-09 ).

Electrical foreman
Connerton supervised the crew and helped install switchgears SS41A and SS41 B. (Tr. 207-08).
Mr. Connerton
reported directly to Mr. Piechocki. ( Tr.
209) .
As the project foreman,
Mr. Piechoc ki oversaw the installation of
switchgears
SS41A and SS41B and the bus duct. (Tr. 46, 207-08).

Both Mr. Piechocki and Mr. Connerton reviewed the project’s schematics and specifications throughout the project. (Tr.
53- 55,
208-09 ;
Exs.
J-1, J-2
p . 5).
The bus duct which provided the physical connection between SS41A and SS41B was bolted together and installed by Griffin employees. (Tr. 46, 207-08).
Mr. Piechocki knew that t he bus duct
had been installed prior to the October 18 shutdown. (Tr. 51, 53, 208-09, 241-45; Exs.
J-1, J-2, C-1, C-2).

In addition to the project’s specifications, schematics, and drawings, two placards permanently attached t o the SS41B
switchgear
equipment showed the
connection to SS41A. Mr. Piechocki a dmitted
that
both placards showed th e
connection
between SS41A and SS41B . (Tr.

57, 66-67). One placard, which was attached to a metal cover located above the
tie
breaker
unit of SS41B, consisted of a diagram that illustrated the connection between SS41A and SS41B.
(Tr. 56-57, 67; Exs.
C-1, J-17). The other placard, which was attached to the front of the
tie
breaker unit of SS41B, consisted of a step-by-step written description of how the SS41A and SS41B switchgears were tied together. (Tr. 56-57, 67; Exs.
C-2, J-17). The two placards were plainly visible ,
had been attached to the switchgear by the manufacturer ,
and were in place when the switchgear arrived for Griffin’s installation. (Tr. 57, 249).
Also ,
project foreman
Piechocki and
senior project manager
Pease
had
reviewed a n early
draft version of both placards
that had been
submitted
in January 2014. (Tr. 61-62, 244-48; Ex. J-4
p . 7).

I find the project’s drawings, specifications, schematics, and equipment placards provided Griffin
with
actual knowledge of the electrical connection between SS41A and SS41B, through Mr. Piechocki, Mr. Connerton, and Mr. Pease. Because Mr. Piechocki knew the bus duct connection was installed and
because he
had reviewed the system specifications, he knew there was
a n electrical connection between
SS 41A and SS41B .

Further, because he drafted MOP-51, Mr. Piechocki knew which circuits had been identified as energized for
the October 18
shutdown .
Senior project manager
Pease and
corporate safety director
Weider received the final version of MOP-51
on October 16, 2014 , so they also knew which circuits were identified to be de-energized .
Electrical foreman
Connerton
also
had
received a copy of MOP-51 on October 16, 2014 .

(Tr.
68- 69 , 224 ; Ex. J-9).

CBRE building engineer
Smith followed the steps in MOP-51 , which identified which circuit breaker
to
open . Mr. Piechocki observed Mr. Smith open the circuit breaker; Mr. Piechocki then removed the
kirk
key
to lockout
the breaker switch.

Mr. Piechocki kept the key in his pocket, establishing his control over the circuit breaker; he was the only person
who
could close the breaker and re-connect the circuits. Therefore, Mr. Piechocki had actual knowledge of which circuit breaker had been opened before
Griffin began
work on the SS41B
switchgear tie breaker
compartment. Mr. Piechocki also had knowledge of the steps in MOP-51 and which circuits
were
identified to be disconnected.

H e knew
Griffin had installed
a physical connection through the bus duct between SS41A and SS41B .

( Tr.
96-97, 99 ).

These facts demonstrate Mr. Piechocki knew of the electrical connection between the substations ,
knew which breakers had been opened and which remained closed on October 18, 2014; thus, he knew of the hazardous condition. 17 I find that Mr. Piechocki had actual knowledge of the electrical connection between SS41A and SS41B and that no breaker switch had been disengaged to de-energize that connection. The Secretary has prove n
actual knowledge of the physical condition that created the violation.

Constructive Knowledge

Under Commission precedent, the Secretary can prove constructive knowledge by proving the cited employer could have known of the violative condition with the exercise of reasonable diligence.

Summit , 23
BNA
OSHC
at
1207 . “Reasonable diligence requires the formulation and implementation of adequate work rules and training programs to ensure that work is safe, as well as adequate supervision of employees.” 
Id .
quoting
N
&
N Contrac tors , Inc. , 18 BNA OSHC
at 2123.

The Secretary asserts that in addition to actual knowledge, Griffin had constructive knowledge of t he violative condition. The Secretary asserts that w ith reasonable diligence,
Griffin
sh ould have
known
of
the electrical connection
through the
bus duct between
switchgears
SS41A and
SS41B , and the potential electrical energization of the bus bar
through the SS41A tie breaker . (S. Br.
p . 29).

I agree.

Project foreman
Piechocki had
reviewed the specifications and schematics
for SS41A and SS41B . The specifications and construction drawings were always available onsite and Mr. Piechocki and his crew routinely consulted them during the project. Mr. Piechocki admitted the
specifications , drawings, and schematics all showed the electrical connection between SS41A and SS41B through the bus duct. Mr. Piechocki
knew
the crew had
installed the bus duct that connected SS41A and SS41B.

MOP-51, drafted by Mr. Piechocki, included steps to open other
circuit
breakers, but no step to open the tie
breaker
to
disconnect the
electrical connection
between SS41A and
SS41B through
the bus
duct . (Ex. J-6
p . 4).
The MOP developed a fter the accident,
MOP-54 ,
included a
step that opened the tie
breaker
for
SS41A. (Tr. 110; Ex. J-8
p . 4).

Mr. Piechocki observed the lockout of the
main circuit breaker to SS41B
on October 18 and completed the step by removing and maintaining control of the
kirk
key so the breaker could not be re-engaged without his knowledge. (Tr.
69) . Mr. Piechocki had all the
available
information
about which circuits
had been
de-energized and with rea sonable dili gence
c ould have known the bus bar
in the SS41B switchgear tie breaker compartment
w as still energized.

The
Secretary
also
asserts that
senior project manager
Pease
– Mr. Piechocki’s supervisor –
could have known MOP-51
did not include a
necessary
step to de-energize and lockout the electrical connection between SS41A and SS41B. (S.
Br.
p .
30). I agree.

Senior project manager
Pease ,
a
licensed electrician,
admitted
that
he reviewed the project’s specifications, construction drawings, and schematics
that showed
a
bus duct
that
provided
an
electrical connection between SS4 1A and SS41B . (Tr. 253). Mr. Pease received a copy of every MOP developed for the project, including MOP-51. (Tr.
69 ). Mr. Pease admitted that he and
corporate safety director
Weider received an email from Keith Piechocki on October 16, 2014 ,
with MOP-51 attached. (Tr. 250; Ex. J-9).

Mr. Pease stated that
even though he
was
Mr . Piechocki’s supervisor, he did not review the steps in an y
MOP to determine if
the MOP
adequately identified all energized circuits that needed to be shut down. (Tr. 253). Mr. Pease further stated that no one at Griffin reviewed the MOPs drafted by Mr. Piechocki. (Tr. 253).
Senior project manager
Pease’s actions
were not
reasonably diligent:
delegating
the
drafting of the MOP to Mr. Piechocki ;
failing to supervise or monitor Mr. Piechocki’s preparation of the MOP ;
and ,
receiving a copy of MOP-51 in
its
final form before execution of the work procedure
and failing to review the MOP for safety compliance . Mr. Pease’s inaction appears particularly lax when considered in light of the unique working conditions on the Fidelity project, where Griffin did not control the breakers to de-energize the electrical equipment Griffin’s employees worked on.

I find that with r easonable diligence, Mr. Pease w ould have known MOP-51 did not include a step to open the
tie
breaker
for
SS41A
and disrupt the electrical connection
between SS41A and SS41B through the bus duct .

Respondent ass erts there is no constructive knowledge because it exercise d
reasonable diligence
in three ways :
when
requesting

comment on the MOP at
project
meetings ,
through
Mr. Piechocki ’s
partial compli ance
with
Griffin’s
Test Before You Touch
policy , and
through
Griffin ’s
implement ation of
its
safety program.
(R.
Br.
p p .
14-16).
I disagree.

First,
MOP-51 was one of approximately
sixty
MOPs
developed during the Fidelity
p roject. (Tr.
68 ). Mr. Piechocki drafted each
MOP and presented the draft
at project meetings where it
was reviewed
line-by- line
so
that
changes, corrections, and suggestions
made at the meetings
could be included . (Tr.
69,
142-43 ).
Griffin asserts
that
it relied on t he
individuals present at
the
project meetings to
evaluate the MOP for any missing steps or
deficiencies. (R.
Br.
p .
16 ) .
Griffin asserts
that
because the experts at the meetings did not identify that a step
to de-energize the
tie
breaker
connection
to
SS41B
was missing, it is not reasonable to expect Griffin to identify the error . In other words,
how
could Griffin
be expected to notice something the accumulated expertise at the project meeting did not notice . ( R.
Br. p.
17; Tr. 255-56 ).
In particular,
Griffin asserts
that
electrical engineer
Lane,
who
designe d
Fidelity’s new electrical sys tem ,
was at the meetings and did not
recognize
that
there was no step
in MOP-51
to de-energize the connection between SS41A and SS41B .
(R.
Br.
p p .
8-9 ).

However, Griffin presented no evidence that any one at the project meeting was tasked to eval uat e
MOP-51
relative to safety procedures for Griffin’s employees .

There is no evidence that Griffin requested or contracted with
Mr. Lane for evaluation of the MOP or its safety procedures. Mr. Piechocki
did
not
ask
Mr. Lane
if
every
electrical connection
was
accurately
identified in MOP-51. (Tr.
141-42 ).

Asserting th at Mr. Lane, or any meeting participant, should have been evaluating the MOP to determine if it complied with Griffin’s safety rules
is not reasonable.
Mr. Lane did not
control the
equipment’s
installation and was not responsible for the safety of Griffin’s employees
during the shutdown. This is especially unreasonable
because
Mr. Piechocki’s supervisor did not review the MOPs
to ensure
the safety of Griffin’s employees or provide general
supervision or
oversight to Mr. Piechocki. Further, Griffin’s
corporate
safety director Weider
did not review the MOPs for safety as it concerned required de-energization or
lock out tag out.

Griffin cannot shift its duty for the safety of its employees to another party. See Summit , 23 BNA OSHC
at 120 6-0 7,
citing
Froedtert
Mem’l Lutheran Hosp. Inc. , 20 BNA OSHC
1500,
1508 -09
(No. 97-1839, 2004 )
(an employer cannot “contract away its legal duties to its employees or its ultimate responsibility under the Act by requiring
another party to perform them”
(citation omitted) )
and
Cent.
of
Ga. R.R. Co. v. OSHRC , 576 F.2d 620, 624-25 (5th Cir. 1978) (noting that Commission precedent establishes that “an employer may not contract out of its
statutory responsibilities
under” the OSH Act).

Second, Griffin
contends that it exercised
reasonable diligence because
project manager
Piechocki attempt ed
to follow Griffin’s
No Live Work
/
Test
Before
You Touch policy. (Resp. Reply
Br. p.
3). I disagree.

Griffin’s
No Live Work / Test
Before
You Touch
policy
required an employee to assume that all parts were energized and to test all the areas that
could be contacted, either intentionally or
inadver tently , while working. (Ex . J-10 ;
R-7).
Project manager
Piechocki
knew
electrician
Mr. J would be working near the bus bar; he had
assigned Mr.
J
to work with him i n
the
narrow
SS41B
switchgear
tie breaker
compartment . (Tr.
88 ).
Mr. Piechocki
used the proximity meter to
check the bolts
(“lugs”)
he planned to loosen , but
he
did not check the areas around the compartment that he or Mr. J could
inadvertently contact . (Tr.
98- 100,
105, 107 ). While assisting Mr. Piechocki with a stubborn bolt, Mr. J inadvertently leaned into the bus bar and was seriously injured. ( Tr. 106 ) .

Mr. Piechocki’s
testimony
reveals that
he did not
understand that he also needed to test
the
areas that could be
inadvertently
contacted
by a body part or tool
while working
at a task . (Tr .
102,
115 -16 , 124 -27 ). In fact, Mr. Piechocki’s specific action of testing
only the bolts
in the 2241B cabinet that he intended to loosen with a wrench, further confirms Mr.
Piechocki’s inaccurate
understanding that he only needed to test components that he was going to
contact
or

touch . 18
Mr. Piechocki ’s incomplete application of Griffin’s
No Live Work / Test Before You Touch
policy
d id
not demonstrate reasonable diligence, especially
when
considering
that
Mr. Piechocki knew the bus duct connected the two
switchgears
and
he
knew which circuits had (and had not been) locked out before work
began
i n
the
SS41B
switchgear
compartment .

Further, as discussed below, 19
Griffin’s
overall implementation o f its work rules did
not show
reasonabl e diligence . Griffin did not
adequately communicate
that an employee must
test any area
that could be inadve rtently
contacted .

Griffin provide d
no
oversight to determine if
MOP-51
complied with Griffin’s safety program.

This is of particular importance, as Mr. Piechocki’s testimony disclosed his understanding t hat Griffin’s employees, including
Piechocki and electrician
Mr. J, were to follow the
“proper
safe
method” o utlined in MOP-51 ,
specific to this worksite ,
on October 18, 2014 . As it was not part of MOP-51, Mr. J was not required to test anything. (Tr. 100, 106-07, 120 ;
See
R . Ex. 4).

I find Griffin did not
exercise
reasonable diligence to ensure its employees
had a safe working environment. The Secreta ry has prove n
that Griffin
had constructive knowledge
of the violative condition.

Project manager Piechocki’s
conduct was
foreseeable

Griffin
also
asserts that the Secretary must show that a supervisor’s “rogue conduct” was foreseeable in order to impute that supervisor’s knowledge
to the employer . (R.
Br.
p .
14).

T he Commission
applies
the case law of the circuit where
a
case m ay
be appealed. 20 Here, Griffin
may
appeal to either the First Circuit or the D istrict of Columbia
Circuit
Court of Appeals . Both courts have
established case law on the issue of imputation of the supervisor’s knowledge to the employer when the supervisor participates in violative conduct. See
Gioioso
II ,
675 F. 3d
at
73
(1st Cir. 2012) ;
Soya , 653 F.2d
at
40
(1st Cir. 1981) ;
Simplex ,  766 F.2d
at
589
(D.C. Cir. 1985) .

Griffin asserts that
Gioi o so
II
cannot be applied to the facts of the instant case
because
the open trench in
Gioios o
II
was an obvious hazard .

Griffin asserts
that, here,
the hazard
was not
obvious because the
electrical
engineer who designed t he
Fidelity
electrical
system
did not point out MOP-51’s
mis sing step
at a project meeting .
(Resp. Reply
Br.
p .
6).
I disagree. In the instant case,
the hazard was obvious to a licensed electrician. Project foreman Piechocki, senior project manager
Pease, and
electrical foreman
Connerton – all licensed electricians
who
worked for Griffin
-
admitted that the specifications, drawings, schematics, and the placards affix ed to the equipment showed the electrical c onnection from SS41A to SS41B. (Tr.
53-55, 207-09, 222, 244-45 ).
T he specifications
clearly
showed
that
the tie
breaker circuit
controlled the connection between SS41A and SS41B.
The undisputed facts do
not support Griffin’s assertion
that
the hazard here was not obvious.

Griffin asserts that
Soya
supports its position that Mr. Piechocki’s knowledge cannot be imputed to Griffin because his actions were not foreseeable . I disagree .
In
Soya , the First Circuit held, “[w]e think it is reasonable on the facts of this case to charge the employer with knowledge of the hazard based on the knowledge of supervisory personnel of an unsafe condition existing within the scope of their supervisory responsibility.” Soya ,
653 F.2d
at
39 . I t was within
project foreman
Piechocki’s responsibility to ascertain the equipment
that
had been de-energized. Mr. P iechocki
knew the equipment’s specifications, had a copy of MOP-51 (which did not include a step to de-energize the connection between SS41A and SS41B) ,
and
supervised the onsite installation crew . The unsafe condition was within the scope of Mr. Piechocki’s responsibility and ,
based on MOP-51, it was foreseeable to
him and
to
his supervisor ,
Mr.
Pease ,
that
the
tie
breaker
switch would not be opened
and
employees working
i n
the
SS41B
switchgear
compartment
would be exposed to an energized circuit. Griffin’s assertion that
the
k nowledge
of its supervisors
cannot be imputed is rejected .

Simplex
compares favorably to the facts here.
In
Simplex , the D.C. Circuit held
that
actual knowledge was not required as long as an employer is not
“ held responsible for violations of which it was reasonably unaware.” Simplex ,   766 F.2d
at
58 8 . There, t he court found the employer had constructive knowledge because the physical conditions “were readily apparent to anyone who looked . . . and should have been known to management.” Id.
a t 589 .
Similarly here, the energized
connection
through
the bus duct between SS41A and SS41B was apparent from the
Fidelity project
specifications, schematics, and diagrams.
(Tr. 53-55, 207-09, 222, 244- 45) .
This energized connection w as apparent to
licensed electricians
Mr. Piechocki,
Mr. Pease,
and Mr. Connerton
from their review of the se
project
documents. I t was not reasonable that no one
on Griffin’s management team
review ed
the MOP s
prepared
by Mr. Piechocki to determine if
Griffin’s
safety practices were
fully incorporated and
implemented .
It was not reasonable that no one on Griffin’s management team supervised Mr. Piechocki’s preparation of MOP-51 to ensure safety compliance with the cited standard. As
in
Simplex,
here t he violative condition was apparent and should have been known
to management .

T o support
its
contention that
project foreman Piechocki’s
knowledge of the violative condition
cannot be imputed to
Griffin,
alleging that
his
actions were not foreseeable , Griffin relies on cases from several other circuits .

Griffin contends that Mr. Piechocki’s conduct in th e instant
case was “rouge” and unforeseeable.
(R. Br.
p . 14). See
Comtran Group v. Sec’y,
722 F.3d 1304,
(11th Cir. 2013);
W.G. Yates & Sons Constr. Co., Inc.,
459 F.3d 604 (5th.
Cir. 2006);
Penn.
Power
&
Light
Co.
v.
OSHRC,
737
F.2d
350,
355 , 357-58
(3d
Cir. 1984)
( PP & L ) ;
Mountain
States Telephone
&
Telegraph
Co.
v.
OSHRC,
623
F.2d
155
(10th
Cir.
1980);
Ocean
Elec.
Corp.
v.
OSHRC,
594
F.2d
396,
401
(4th
Cir.
1979).
(R. Br. p. 14-15).

I disagree. I find that project foreman Piechocki’s actions
in violation of the standard
were foreseeable and, therefore, Mr. Piechocki’s knowledge may
be imputed to Griffin .
Even when a supervisor participates in violative conduct, the Secretary’s burden of proving that a violation of the standard was preventable may be achieved “by showing that the violation was foreseeable because of inadequacies in safety precautions, training of employees, or supervision.” PP & L , 737 F.2d at 358,
quoting Capital Elec. Line Builders, Inc. v. Marshall , 678 F.2d 128, 130 (10 th
Cir. 1982).
See
Kansas Power & Light Co . ,
5 BNA OSH C
1202,
1204
(No. 11015, 1977) (knowledge of the supervisor will be imputed to the employer unless employer can show that supervisor was “adequately supervised with regard to safety matters”).

In the instant case, Griffin failed to supervise the supervisor, project foreman Piechocki, who was assigned the important task of preparing the MOPs. Mr .
Piechocki understood that MOP-51 set forth the
proper safe method
that Griffin’s employees would follow on October 18, 2014. Mr. Piechocki provided the final MOP-51 to his immediate supervisor ,
senior project manager
Pease ,
and to Griffin’s corporate safety
director
Weider . H owever, no Griffin manager supervised Mr. Piechocki’s preparation of the MOP or reviewed the MOP to ensure worksite safety and compliance with the standard.

Griffin’s failure to supervise Mr. Piechocki’s work on the important task of preparing the
MOP,
reveals Mr. Piechocki’s conduct to be foreseeable.

I t was reasonably foreseeable that MOP-51 would be followed during the October 18 shutdown and
th erefore
the electrical connection between the substations would not be de-energize d . Griffin had constructive knowledge of the violative condition
through
project foreman
Piechocki
and
senior project manager
Pease.

I find the cited standard applies, its terms were violated, employees were exposed, and Griffin had knowledge of the hazardous condition. The Secretary has met his burden for citation 1, item 2.

Unpreventable Employee Misconduct Defense

Respondent
also
asserts that
project foreman Piechocki and electrician
Mr.
J
engaged in
unpreventable employee misconduct when
they did not accurately implement
Griffin’s
No Live Work
/
Test
Before
You Touch
policy.

(R.
Br.
p p .
25 -26 ) .

“To establish this defense, an employer must show that it had: (1) established work rules designed to prevent the violative conditions from occurring; (2) adequately communicated those rules to its employees; (3) took steps to discover violations of those rules; and (4) effectively enforced the rules when violations were discovered.” E.g.,
Manganas Painting Co.,
21 BNA OSHC 1964, 1997, (No. 94-0588, 2007).
“Where a supervisory employee is involved, the proof of unpreventable employee misconduct is more rigorous and the defense is more difficult to establish since it is the supervisor's duty to protect the safety of employees under his supervision.” Archer-Western Contractors, Ltd ., 15 BNA OSHC 1013, 1017 (No. 87-1067, 1991),
aff’d ,
978 F.2d 744 (D.C. Cir. 1992) (citations omitted)
(unpublished).

T he First Circuit recognized
the “OSH Act requires that an employer do everything reasonably within its power to ensure that its personnel do not violate safety standards” and that the employer must prove the affirmative defense of unpreventable employee misconduct to not be liable for the violative conduct. Modern Cont’l.
Const. Co., Inc. v. OSHRC , 305 F.3d 43, 51 (1st Cir. 2002)
citing
P. Gioioso & Sons,
115 F.3d 100,
109 (1st Cir. 1997)
( Gioioso I ) .

For the reasons that follow, I find that Griffin’s work rule s
w ere
inadequate,
Griffin
did not effectively communicate its work rules to its employees,
and Griffin
did not adequately discover and discourage violations. Therefore, Griffin’s unpreventable employee misconduct defense fails.

Griffin’s work rules were inadequate

Respondent asserts that its
N o Live Work / Test
Before
You Touch
policy
was adequate and that if Mr. J and Mr. Piechocki had followed this rule, there would have been no accidental contact with an energized circuit. (R.
Br.
p p .
25-26; R. Reply
Br.
p .
4). Additionally, Griffin asserts MOP-51 was not a work rule, so
it
cannot be used to show Griffin ’s
work rules
were inadequate . (R. Reply
Br.
p .
4).

The Secretary asserts Griffin’s generic work rules were inadequate for the Fidelity worksite. The Secretary
points to
Griffin ’s claim that
it usually had complete control over the circuit breakers during a project and Fidelity’s requirement ,
that Fidelity
maintain control ,
was an aberration from
Griffin’s
normal pr actice . (S.
Br.
p p .
34-35).
Because of this significant change in Griffin’s routine
practice , a more specific work rule was needed
for
Griffin’s
employees
at the Fidelity worksite
because Griffin did not have complete control over the breakers . (S.
Br.
p p.
35, 38).

The Commission has held that an employer’s work rules must be clear enough so that
they
will eliminate the hazard covered by the standard. Beta Constr. Co.,
16 BNA OSHC 1435,
1444
(No. 91-102, 1993). “In order to fulfill its statutory obligation an employer must do more than issue safety instructions or hold safety meetings. . . . Specific safety instructions and work
rules concerning particular hazards that may be encountered on the job are the essential foundations of an adequate safety program.” Paul Betty , 9 BNA OSHC 1379,
1383
(No. 76-4271, 1981) (citations omitted) .
S ee also
CMC Electric,
Inc.,
221 F.3d 861, 866 (6th Cir. 2000) (affirming
Commission’s findings that employees were not given specific work rules for the assigned work and it was foreseeable employees would be exposed to the hazard).

Griffin’s No Live Work policy states “live work” is “any work in such proximity to any part of an electrical system with exposed energized parts where an employee could contact the energized parts in the course of work.” (Ex. J-10). Griffin’s Test Before You Touch
safety sheet states that an employee must
“never assume that the equipment or system is de-energized –
“Test every circuit, every conductor, every time you touch !” –
even
if it seems “redundant or unnecessary.” (Ex. R-7). It also lists unplanned situations that an employee must
account for , including “unintentionally going outside the isolated safe work zone.” (Ex. R-7).
Griffin’s corporate safety director
Weider
explained
that
the
Test
Before
You Touch
policy is training for
one
particular aspect of the
No Live Work
policy. (Tr. 183; Exs.
R-7, J-10).

Griffin’s N o Live Work
policy also states:

There are a number of
other hazards related to working equipment hot that are not obvious. In particular, determining that a circuit is OFF can be difficult in some instances. Even with the
best of intentions to avoid worki ng hot, it is necessary and important to check for circuit voltage with an appropriate voltmeter bef ore
working on equipment presumed to have been
de - en ergize d . This situation results when the equipment involves items such as
tie breakers , double-throw disconnect switches, automatic transfer switches and emergency generatio n.
In such cases, turning the equipment OFF may result in power being supplied by another circuit route or from another source. Working on these circuits requires extra knowledge and caution . ( emphasis
added)

(Ex. J-10 , p. 5 ).

The record shows that it was unclear who had the responsibility to determine which breakers would be
opened and de-energized . CBRE chief
building
engineer
Smith and
CBRE senior facilities manager
Gustafson
believed that Griffin would identify which breakers needed to be open
during a
shutdown . (Tr. 276-77, 309-11).
Griffin’s project foreman
Piechocki believed that either Fidelity or CBRE identified which breakers needed to
be
open ed
for a particular work activity. (Tr. 156). MOP-51
d id
not designate
which party was responsible to
identify
t he breakers to open
before work began . ( Ex. J-6). MOP -51
states that FREC will open the breakers, but
does not designate who determines
or identifies
which breakers should be opened. (Ex. J-6). This was of particular importance here , because
Griffin’s project foreman
Piechocki 21
had never worked at a project where he did not
completely
control the breaker s . (Tr. 130, 154).

I find that Griffin made no adjustment to its rules,
despite what it asserts was a significant change
to
its routine pr actice . Griffin did not establish a work rule that would provide a substitute for its complete control of the circuit breakers. Further, it did not include a necessary step in MOP-51, which Mr. Piechocki
and Fidelity
w ere
following, to ensure all live circuit breakers were
identified and
opened.

Further, project foreman Piechocki’s testimony discloses that
on October 18, 2014,
it was his understanding that Griffin’s employees, including Piechocki and
electric i an
Mr. J, were to follow the
proper
safe
method
for work
set out
in MOP-51
(which was
specific to this
worksite ) . 22
(Tr. 100, 106-07, 120).
Mr. Piechocki’s testimony demonstrates he believed following the steps of MOP-51 was the same as following Griffin’s No Live Work policy. ( Tr.
120).
Mr. Piechocki testified that
as
it was not part of MOP-51, Mr. J was
not required to test anything . (Tr. 100, 106-07 .
See
Ex. R-4 ). As it was not part of MOP-51, Mr. J was not required to wear any personal protective equipme nt. (Tr. 107). In fact, the record reveals that electrician
Mr. J followed
the lead of his foreman, Mr.
Piechocki , a nd did not test the areas in the
SS41B switchgear compartment
he planned to or could
unintentionally
make contact with .

Griffin’s generic work rules were not
sufficient
for the work at the Fidelity worksite.

Further, MOP-51, which was relied on by Piechocki, was incomplete.

Griffin’s work rules were not adequately communicated

To determine whether work rules ar e ad equately communicated,
the
Commission considers evidence of how
the
work rules are conveyed
to employees . Cerro Metal Prods. Div. ,
Marmon
Grp.,
Inc.,
12 BNA OSHC 1821, 182 3
(No. 78-5159, 1986) ( Cerro ) .
“ [ T ] he employer must establish that it took all feasible steps to prevent the [incident], including adequate instruction and supervision of its supervisory employee[s].”  CBI Serv s. , Inc.,
19 BNA OSHC 1591,
1603
(No. 95-0489, 2001)
aff’d,
53 F. App’x 122 (D.C. Cir. 2002)
(unpublished),
quoting
L.E. Myers Co.,
16 BNA OSHC 1037, 1041 (No. 90-0945, 1993) .

Griffin asserts that it communicated its N o Live Work / Test
Before
You Touch
policy
through its safety manual,
its
onsite training, weekly toolbox talks,
annual safety reviews , and
a signed acknowledgement by
each
employee
that he
would comply with the policy .
(R.
Br.
p .
26).

Corporate safety director
Weider,
who was not
a trained
electrician,
provided the safety training f or Griffin employees . (Tr. 173, 175, 177).

Project foreman
Piechocki’s testimony
demonstrates
Griffin’s communication of
these
work rules
wa s
inadequate. As discussed above, Mr. Piechocki’s testimony discloses that it was his understanding that Griffin’s employees were to follow the
proper safe method for work outlined in MOP-51 as a replacement for
Griffin’s generic No Live Work
policy . (Tr. 100, 106-07, 120 ; R. Ex. 4 ).

Mr.
Piechocki’s understanding
that electrician Mr. J
was not required to follow the No Live Work policy at
the Fidelity worksite, at best, discloses that Griffin’s No Live Work
policy
was
not
adequately communicated on the Fidelity worksite.

Further,
Mr. Piechocki stated that he did not know if the
No Live Work / Test
B efore
You Touch
policy
applied to equipment that had not yet been commissioned. (Tr.
73,
115 , 124 , 161-62 ). When asked why no step to open the
SS41A
tie
breaker
had been
discussed at the MOP-51 meeting, Mr. Piechocki replied that it
was
because
“ the tie bus was
no t installed yet so it wasn’t commissioned. ”
(Tr. 73).
However,
Mr. Piechocki also testified that even if the bus duct was not commissioned it would still be a source of potential power. (Tr. 73-74). This conflicting testimony
further illustrates that
Mr. Piechocki was unclear
regarding
when the
No Live Work / Test
Before
You Touch
policy
applied. 23

Mr. Piechocki also testified
that
the
No Live Work / Test
Before
You Touch
policy
meant he was supposed to test any area that he planned to
contact
to
determine whether
it was still energized. (Tr. 124-27). His response
demonstrates
he did not
understand that
he was supposed to also test any circuit or part that he could inadvertently contact while engaged in a work task. 24

Griffin’s communication of
its
rule to test any area that could be contacted intentionally or inadvertently was not adequately communicated .

There was no training or other communication from Griffin on how to proceed when
another entity had
control over the circuit breaker switch at the Fidelity worksite. Griffin’s general lockout policy required the identification of all live sources;
however,
MOP-51
did not note who would
identify the live
energy
sources. (Ex. J-13
p p.
3-4). Griffin’s eight -step lockout
/
tagout procedure was not modified
to
clarify
what
steps
Griffin
employees
would implement
when
Fidelity
was a part of the
lockout
process. (Ex. J-13
p . 4). Mr. Piechocki observed Fidelity op en
the circuit breaker and
then he
kept the
lockout
key in his pocket . H e was responsible for a part of the lockout process, but had no guidance on h ow to implement the policy when Fidelity retained operation of the breaker itself.

Mr. Piechocki ’s testimony
reveals that
Griffin provided no information or training for impl ementa tion of its safety policies adjusted
for
the Fid elity worksite. Griffin did not adequa tely communicate its work rules to test areas that could be inadvertently contacted.
Further, Griffin did not adequately communicate that its general No Live Work / Test
Before
You Touch
policy
remained in effect regarding Griffin’s work at the Fidelity worksite, in addition to the proper safe method of work outlined in MOP-51.

Griffin’s methods to discover safety violations were inadequate

Griffin
asserts it had many
ways to discover
violations of its safety policy :
Griffin’s e mployees were required to report violations, supervisors observed employees for safety compliance ,
and Griffin’s safety staff conducted site inspections . (R.
Br.
p .
26). Griffin’s corporate safety director
Weider
testified there were three safety representa tives that visited Griffin ’s
work sites in the Northeast United States. Mr. Weider visited a site when
requested or if the site
was unique in some way. (Tr. 193).

Notwithstanding Griffin’s assertions, n o one provided oversight to
project foreman
Piechocki’s development of the MOPs. (Tr. 181-82,
249-250 ). No one provided oversight to Mr. Piechocki to ensure that Griffin’ s No Live Work / Test
B efore
You Touch
policy
was
clearly incorporated in to
the MOP’s safe work procedures.

Mr. Weider
reviewed MOP-51
only
to see what tools and personal protection equipment would be needed at the worksite. (Tr. 195 -96 ; Ex. J-6). He reviewed the MOPs for clarity
but not for
any possible modifications. Mr. Weider did not ask
Mr. Piechocki
if all the live energy sources had been
identified in MOP-51. (Tr. 181-82).

Senior project manager
Pease admitted that no one from Griffin supervised Mr. Piechocki’s development of MOP-51. (Tr. 251-52 ).

I find Griffin provided no oversight of the MOP process to determine if Griffin’s work rules were followed.

Additionally, Griffin
asserts
there was no indication
that a higher level
of supervision
was needed
to be provided to
Griffin’s
project foreman
Piechocki. (R.
Br.
p .
16, R . Reply
Br.
p .
8).
Griffin asserts it was justified in relying on
project foreman
Piechocki
and
electrician
Mr.
J
to work safely without additional guidance
or monitoring . (R.
Br.
p .
16).

Griffin relies on
four
Commission cases to support its premise that greater supervision was not required: S.J. Louis Constr. of Tex . ,
25 BNA OSHC 1892, 1896-98 (No. 12-1045, 2016)
( S J L ) ,
citing
LJC
Dismantling Corp.,
24 BNA OSHC 1478, 1481-82 (No. 08-1318, 2014) (instructions sufficient in light of employee’s extensive training, experience and no evidence of safety violations);
Thomas Indus.
Coatings, Inc. ,
23 BNA OSHC 2082, 2088-89 (No. 06-1542, 2012)
( Thomas )
(supervision adequate for experienced laborers with no history of violating safety rules);
Ragnar Benson,
Inc. ,
18 BNA OSHC 1937, 1939-40 (No. 97-1676, 1999) ( Ragnar )
(no constructive knowledge where Secretary could not show how long the violative condition had existed
at
the
worksite
or how aggressively the employer would have had to investigate to detect the violative condition,
where
the
job superintendent was onsite every day
and the general superintendent ( safety
manager) and
project foreman
regularly
visited
the worksite, on a
week ly and biweekly basis ) ;
C erro , 12 BNA OSHC
at
1824 -25
(reliance on employee justifiable in light of employee’s extensive training, lengthy experience and fine work record) .
(R.
Br.
p .
16 ;
R. Reply
Br.
p .
8) .

In
Cerro,
the Commission held the Secretary had not established constructive knowledge for a general duty clause
violation . Cerro , 12 BNA OSHC
at
1824 -25 . The re, the
record show ed
that Cerro had an adequate safety
program ,
that
the employees received and understood the company’s safety rules , and
that supervisors had provided adequate supervision
relative to
the experience and expertise of the employee. The employee
in
Cerro
had significant training, years of experience on the equipment ,
and had completed an 8,000 hour apprenticeship program.
The Commission found
that based on the facts
the supervisors could not have foreseen the need for additional precautions and the Secretary did not show that there was a “specific, feasible additional step” that could have been taken to improve communication of the work
rule to employees; thus the Secretary did not carry the burden of proof for knowledge. Id.

By contrast, in the instant case, even though
project foreman
Piechocki was a licensed journeyman electrician, he had never worked at a site where Griffin did not have control over the circuit breaker switches. H e
had no experience drafting
procedures where the building’s owner maintained control of the circuit breakers. Mr. P iechocki
was the only Griffin employee at the group
project
meetings where the MOP steps were discussed, and his supervisor , senior project manager
Pease, admitted that no one reviewed the MOPs
that
Mr. Piechocki
drafted. Here, there was no supervision of Mr. P iechocki
in the development of
MOP-51 that
Griffin’s
employees
relied
upon
as the safe work procedure
for the
October 18, 2014 shutdown. It wa s not reasonable to provide no oversight or supervision for
a
critical shutdown process and ,
in particular , it was
not reasonable because Fidelity
maintained control over the
circuit
breaker switches ,
which was not routine for Griffin worksites .

Cerro
does not support Griffin’s premise that it was reasonable to completely rely on
project manager
Piechocki’s experience and provide no supervision or oversight of the MOP development process.

Griffin cites
Ragnar
to support its premise that there was no notice
that Griffin
needed to
implement
additional measures to discover the hazard. Ragnar
is unavailing. In
Ragnar ,
the violative condition
was non-fastened
hole
covers that contractors routinely accessed to conduct work. The record disclosed that Ragner’s general superintendent (safety manager)
visited the worksite once a week
for a short duration , the project foreman visited
the worksite
twice a week
for a short duration , and the job superintendent was onsite every day. T he Commission found no proof for constructive knowledge where the Secretary could not show how long the violative condition had existed
or
whether the condition could be easily detected . Therefore, the Commission was unable to determine whether
Ragnar
had or had not
exercised reasonable diligence in discovering
a
violation of the standard. Ragnar,
18 BNA OSHC at 1939-40 .

Here,
Griffin provided
no oversight or supervision
to
project foreman
Piechocki
to ensure
that he
effectively
identified
all the sources of energization
and accounted for them in the M OP-51 shutdown procedure. The Secretary is not asserting that constant surveillance is needed; the issue at hand is the lack of any supervision for Mr. Piechocki. This shows Griffin was not reasonably diligent in tak ing
steps to determine if
MOP-51 ,
developed by Mr. Piechocki ,
identified all energy sources to be shut down. Further, Griffin was aware that inserting the building owner into the shutdown process was not
Griffin’s
usual
practice , yet Griffin
made no effort
to ensure all energy sources were identified so its employees could work safely.
Griffin
took
no measures to determine if MOP-51 addressed the worksite’s hazards. Griffin provided no oversight to ensure that MOP-51 incorporated Griffin’s general safety procedures.

In
SJL , the Commission found
it was reasonable for the employer to rely on the employees’ experience and training where its
employees had demonstrated
an
understanding of
relevant
training
a
month before
the inspection , there had been no observations of
any
shortcuts
at the worksite , and the employer had
six
safety specialists that conducted random
and planned worksite audits. SJL,
25 BNA OSHC
at
1899. The instant case does not compare. Here, there was no
additional training or guidance
provided to Griffin’s project foreman Piechocki or electrician Mr. J
to a ddress the unique worksite conditions
present
where an entity other than Griffin ( Fidelity )
control led
the
circuit breaker switch
in Griffin’s
work
procedures .

Further, no one provided oversight for
whether
MOP-51
included all relevant safety procedures .
SJL
does not support Griffin’s premise
that
it could rely
on
its employees’
past
training and experience
at the Fidelity worksite.

In
Thomas,
the Commission found adequate supervision where
the employer
had
a
crew foreman
on site
at all times, the superintendent walked the job every week, the owner periodically visited the worksite, and
the
safety manager conducted random inspections. Thomas,
23 BNA OSHC
at
2088-89 .
The Commission’s finding in
Thomas
does not support Griffin’s p remise. To the contrary,
I find there was no oversight or supervision
to project foreman
Piechocki
in his
development of MOP-51 ,
even though
MOP-51
served as the primary guide during the shutdown process
and Mr. Piechocki understood MOP-51 to describe the
“proper
safe
method” for
the
work
tasks outlined .

The Secretary asserts that Griffin had a duty to supervise Mr. Piechocki.

(S.
Br.
p .
44). I agree.
See Jensen Constr. Co,
7 BNA OSHC 1477, 14 79- 80 (No. 76-1538, 1979) (finding employer did not adequately supervise supervisor, did not take necessary steps to prevent violation, and violative conduct of superviso r wa s imputable to the employer);
see also,
Dana Container, Inc.,
25 BNA OSHC 1776, 1782-83 (No. 09-1184, 2015)
aff’d ,
847 F.3d 495
(7th Cir. 2017)
(f inding safety entry permits were reviewed, but no action was taken to correct deficiencies, thus it was reasonably foreseeable employee would not follow company’s work rules ) .

Here,
MOP-51 was su bmitted to
two
Griffin managers ,
senior project manager
Pease
and corporate safety director
Weider . (Tr. 84, 279-80, 224,
250; Ex. J-9). Mr. Pease admitted that the project’s specifications
showed the
bus duct connected SS41A and SS41B. (Tr.
245 ). Mr. Pease also admitted that no one at Griffin reviewed MOP-51 (or any MOP) to determine whether all energy sources
had been
identified for shutdown
or that Mr. Piechocki had followed Griffin’s safety guidelines . (Tr.
253 ).

I find that Griffin did not provide adequate supervision of its employees, and in particular,
project foreman
Piechocki ’s MOP procedures,
to determine if all energized circuits had been identified and opened prior to working on
the
SS41B
switchgear .

Griffin had an adequate disciplinary policy

Respondent asserts that it had a progressive disciplinary policy that was routinely enforced. (R.
Br.
p .
26 ; Tr. 363, 366, 370; Ex. R-10). Actions include d
warnings, suspension, and termination. (Tr. 366-67).
Evidence for the time period from January 2012 until November 2014 shows that four employees were suspended,
fourteen employees
received written warnings, and
nineteen employees
received verbal warnings for violations of safety rules.
(Tr. 365-67; Ex.
R-10). Five of the actions were related to violations of Griffin’s No Live Work policy. (Tr. 373-376; Ex. R-10).

The Secretary asserts that because no one was disciplined for the safety violations related to the October 18, 2014 accident, Griffin’s disciplinary policy was inadequate. (S.
Br.
p .
48 ). I disagree.

In lieu of traditional discipline
regarding the October 18 th
incident,
Griffin
management decided to place a memo in
project foreman
Piechocki’s personnel file because he had an excellent safety record prior to the accident and
had
saved
electrician
Mr. J ’s life by pulling him off the
energized bus bar. (Tr. 371; Ex. J-14).
Griffin’s director of administrative operations Gerald Richards testified that b ecause Mr. J did not return to work after the accident, no determination
was made
about
possible disci plinary action.
If Mr. J return ed
to work
in the future , Mr. Richards anticipated that management would have a discussion with Mr. J about the incident and lessons learned. 25

(Tr. 371-72 ; R. Br. pp. 25-26 ).

The Secretary has not presented evidence to rebut Griffin’s showing that it had an effective disciplinary policy that it enforced. The lack of discipline for a single event is not determinative of whether an employer has an effective policy. See Am .
Eng'g & Dev. Corp. , 23 BNA OSHC 2093, 2097 (No. 10-0359, 2012)
(finding that one instance of delayed discipline two months after the inspection did not undermine its otherwise strong enforcement policy). That is particularly true here where Mr. Piechocki’s discipline was modified because of his prior safety record and his efforts to assist Mr.
J during the accident.

Griffin’s safety rules, its communication of safety rules to its employees, and its discovery of violations of its safety rule
were inadequate for the Fidelity worksite . Griffin’s unpreventable employee misconduct defense fails.

Multi-Employer Worksite Defense

Griffin asserts that because it did not have control over the circuit breaker that it did not create or control the worksite’s hazards
and thus could not abate the hazard . Griffin asserts that
it relied upon Fidelity’s property manager, CBRE, to identify which circuits woul d be opened or closed. (R.
Br.
p .
10 ).

It is true that Fidelity’s contract required control over the circuit breaker s
to remain with
its agent, CBRE . This
was reflected in MOP-51. (Ex. J-6). However, MOP-51 shows
CBRE’s
role
w as limited to operation of the
circuit breaker
switch . M r. Piechocki
observed the opening of the switch
and
maintained responsibility for the lockout
and test ing of
the breakers.
(Tr. 78; Ex. J-6). Mr. Piechocki
drafted
MOP-51,
so Griffin controlled the document that establ ished
the steps in the process . CBRE follow ed
the steps
in
MOP-51. (Tr. 69). CBRE’s building engineer
Smith
stated ,
“I wasn’t contracted to do the job. I mean I just - all I was there to do was to open the breaker, like it said in the MOP.” (Tr. 277).

Griffin’s employees were
e xposed to
the
hazards
related to unidentified energized circuits . Because Griffin’s own employees were exposed, to
prevail in establishing a multi-employer worksite defense, Griffin must prove that “1) it did not create the violative condition to which its employees were exposed; 2) it did not control the violative condition, so that it could not itself have performed the action necessary to abate the condition as required by the standard; and 3) it took all reasonable alternative measures to protect its employees from the violative condition.”
Rockwell Int'l Corp. , 17 BNA OSHC 1801, 1808 (No. 93-45, 1996) (consolidated);
see also, Summit , 23 BNA OSHC
at
120 6-0 7 .

As the Commission stated in
Grossman Steel & Aluminum Corp . ,
4 BNA OSHC 1185 (No. 12775, 197 5 ) :

[E] ach employer has primary responsibility for the safety of its own employees. Simply because a subcontractor cannot himself abate a violative condition does not mean it is powerless to protect its employees. It can, for example, attempt to have the general contractor correct the condition, attempt to persuade the employer responsible for the condition to correct it, instruct its employees to avoid the area where the hazard exists if this alternative is practical ,
or in some instances provide an alternative means of protection against the hazard. We therefore expect every employer to make a reasonable effort to detect violations of standards not created by it but to which its employees have access and, when it detects such violations, to exert reasonable efforts to have them abated or take such steps as the circumstances may dictate to protect its employees. In the absence of such actions,
we will still hold each employer responsible for all violative conditions to which its employees have access .

Id.
at 1189 (emphasis
added ).

Griffin asserts that
Summit
supports its position that it
had
little
control
over the circuit breakers and could not control the hazard . (R.
Reply
Br.
p p. 7-8) . In
Summit , the Commission found
that
the general contractor had significant control at the worksite and thus could be cited
for the violative condition. Summit , 23 BNA OSHC
at
1206-07 . Griffin asserts that because Fidelity maintained control of the
circuit
breaker switch es , it was the controlling employer and Griffin was not responsible for the violative condition. (R. Reply
p p. 7-8). I disagree. Summit
does not support Griffin’s position that it had insufficient control to be cited for the violative condition. Summit
concerned
whether a general contractor could be cited when the employees of another employer at the worksite (and no ne of
their own employees) were exposed to the violative condition. Here, Griffin’s own employees were exposed to the violative condition and , therefore, Griffin
was
responsible for their safety. Additionally, I find Griffin had sufficient control over the violative condition to
abate the hazard.

Griffin also asserts that
the decision in
Fabi
Constr. Co., Inc. v. Sec’y of Labor,
508 F.3d 1077 (D.C. Cir. 2007)
supports its premise that
it
had implemented a reasonable means of abating the hazard to its exposed employees because the designer of Fidelity’s new electrical system was present at the MOP meetings and could
have
suggest ed
changes
to the MOP-51 procedure . Id . at
1083 .

Fabi
is an inapt comparison to the instant case. Here, t he system’s designer was present at the meetings, but there is no evidence Griffin asked the designer to
determine whether
all
energized circuit s
had been identified in
MOP -51. Merely presenting
a procedure to
a
group ,
with
the hope
someone
will identify all the safety hazards to
which
Griffin’s
own employees
will be exposed ,
is not reasonable. Further, the fact that no one at Griffin provided any oversight or review of
t he MOP procedures drafted by M r. Piechocki wa s unreasonable. Mr. Pease , Piechocki’s supervisor,
had all the
system’s specifications
and the MOP, but took no actions to ensure Mr. Piechocki had correctly identified all the
live
energy sources.

B ecause Griffin installed the
new
electrical
system, wrote
MOP -51 ,
observed the
circuit
breaker
that
was opened, and maintained control of the lockout key,
I find
that Griffin
created the violative condition . Additionally, Griffin had
sufficient
control over the circuit breakers . Mr. Piechocki identified ,
through the MOP ,
which
breaker
would be opened
and
he
maintained lockout control
of the breaker .

Griffin had the ability to have the hazard abated as required by the standard – it only had to ask the Fidelity representative,
CBRE chief engineer
Smith, to operate a circuit breaker switch
to de-energize a circuit . Griffin, as the hired electrical specialist
and system installer , had the skills and information to identify which circuit breakers had to
be
opened to de-energize the system its emplo yees were working on. Griffin provided no evidence
that it could not comply with the cited standard’s requirement or that it took
reasonable alternative steps to protect its employees
who were exposed to the hazard .
Griffin’s multi-employer defense fails.

Citation 1, Item 1 – Alleged violation of 29 C.F.R. § 1926.416(a )( 1)

This item alleges a serious violation of 29 C.F.R. § 1926.416(a )( 1), which states:

No employer shall permit an employee to work in such proximity to any part of an electric power circuit that the employee could contact the electric power circuit in the course of work, unless the employee is protected against electric shock by de-energizing the circuit and grounding it or by guarding it effectively by insulation or other means.

The Secretary asserts Griffin permitted employees to work near an energized bus
bar
in the SS41B switchgear
tie breaker compartment
without any protection from electric shock.

Respondent asserts it had no knowledge that an energized circuit was in the employees’ work area, that it relied on F idelity
to determine the location of energized circuits, and
any employee
exposure was the result of unpreventable employee misconduct.

For the following reasons, I find the Secretary has met his burden and established Griffin allowed two employees to work near an energized electrical power circuit without any means of protection.

The standard is applicable

As discussed above, Griffin’s work at the Fidelity project was construction work. The cited standard applies.

Employee Exposure

Both
project foreman
Piechocki
and electrician Mr. J
were exposed to the hazard of contact with an energized electrical circuit. The energized bus bar was located just above
the area in
the narrow cabinet where
the
employees were unbolting connections and close enough that inadvertent movement resulted in contact with the energized bus bar. (Tr. 10 5-06). Mr. J’s
face contacted the energized bus bar while he
was attempting to loosen
bolts
in the SS41B compartment. (Tr. 106) .
Griffin’s employees
were exposed to the cited hazard.

Griffin did not comply with the requirements of 29 C.F.R. § 1926.416(a )( 1),

The Secretary asserts Griffin permitted
its
employees Mr. J and Mr. Piechocki to work in proximity to an energized bus bar located in the rear of the
SS41B
electrical switchgear compartment and took no precautions to protect the employees against electric shock. (S.
Br.
p .
24). As the
case
facts
show , both empl oyees were close enough to inadvertently
contact an energized electrical circuit
while working in the SS41B
switchgear
compartment . Griffin does not dispute
that
the employees were working in the assigned location, which was close enough
for the employees
to make contact with the energized bus bar. Further, Griffin does not assert
that
it protected its employees by grounding, guarding, or insulating the energized circuit. Griffin
simply
asserts that it
did not know the circuit was energized and
that the
employees did not follow Griffin’s work rules.

I find that Griffin did not comply with the standard when it
allowed its employees to work i n
the
SS41B
switchgear compartment
within proximity of the energized bus bar , with no protection against electrical shock .

Knowledge is
Established

The Secretary must prove the employer either knew, or with the exercise of reasonable diligence could have known, of the violative condition . Summit , 23 BNA OSHC
at
1207 . Constructive knowledge is imputed
where a supervisory employee c ould have reasonably known about the safety violation. Gioioso
II ,
675 F.3d
at
73
(citations omitted) .
Knowledge is directed to the physical conditions that constitute a violation. The Secretary need not show that an employer understood or acknowledged that the physical conditions were hazardous. Phoenix , 17 BNA OSHC
at
1079-1080 .

As discussed above for citation 1, i tem 2, t he Secretary asserts that Griffin had both actual and constructive knowledge of the violative condition. The
Secretary asserts Griffin had actual knowledge the bus bar was energized and could be contacted by anyone working in the SS41B
switchgear
compartment.

Griffin asserts it had no actual knowledge the bus bar was energized and posed a hazard. (Resp. Reply
Br.
p . 2).

As discussed above,
project foreman Piechocki
and
senior project manager
Pease knew there was a bus duct that provided an electrical connection
from SS 4 1A
to the bus bar in SS41B .
Placards attached to SS41B showed
the
electrical connection through the bus duct.
MOP-51, developed by Griffin ’s project foreman Piechocki , did not include a step to open the tie
breaker switch
for the connection from SS41A
to
fully
de-energize
the bus duct in the
SS41B
switchgear compartment . Griffin installed SS41A and SS41B and the connecting bus duct and th erefore
knew of the electrical connection.

Through Mr. Piechocki, Griffin knew the bus duct connecting SS41A and SS41B had been installed, there was no step in MOP-51
to break that connection, and employees would be working near the bus bar , which
had not been de-energized. The Secretary has prove n
actual knowledge of the physical condition that created the violation.

The Secretary
also
asserts Griffin had constructive knowledge of the violative condition. I agree.

“[A]n employer can be charged with constructive knowledge of a safety violation that supervisory employees know or should reasonably know about. ”
Gioios o
II ,
675 F.3d
at
73 . As discussed above,
Mr. Piechocki
also had constructive knowledge of the violative condition. With reasonable diligence, he could have determined the bus bar above the area
where
he and Mr. J were going to work was still energized. Mr. Piechocki knew the bus duct connection had been installed, that it provided an electrical connection from SS41A to SS41B . H e knew where he and Mr. J would be working. Mr. Piechocki wrote MOP-51,
observed
Mr. Smith
open the circuit breaker ,
personally removed the kirk key to lockout the breaker switch,
and
then
maintained
control of the lockout key. Griffin had constructive knowledge
that
the tie
breaker circuit
had not been
de-energized.

I find that Griffin did not exercise reasonable diligence to ensure its employees were not working in proximity to an energized circu it. No one at Griffin made an
effort to ensure the MOP drafted by
project foreman
Piechocki was complete and included the necessary protections from energized circuits. Senior project manager
Pease had all the
necessary
information
to know that
when
Griffin employees
followed MOP-51 they
would be exposed to contact with an energized circuit.

Further, it was not reasonable for Griffin to expect the system designer to determine if MOP-51 identified all the energized circuits ; especially,
when
senior project manager Pease,
Mr.
Piechocki’s supervisor ,
did not review
MOP-51
to determine whether all the safety steps had been included. Griffin cannot shift its duty for the safety of its employees to another party. See Summit , 23 BNA OSHC
at
120 6 -0 7
(citations omitted).

As discussed above, I find that it was foreseeable that employees would be exposed to the energized bus bar. There was no step in MOP-51 to de-energize the connection . Mr. Pease received MOP -51
prior to the October 18 shutdown. Mr. Piechocki and
Mr. Pease knew SS41B had an electrical connection to SS41A
based on
the project’s specifications .

The violative condition was apparent and should have been known
to
Griffin’s supervisory employees. It was reasonably foreseeable that MOP-51 would be followed during the October 18 shutdown, the electrical connection between the s witchgears
would not be de-energized, and an employee would be exposed to the energized bus bar while working in the
narrow
SS41B
switchgear compartment .

I find Griffin had constructive knowledge of the violative condition.

Further, f or the reasons stated above regarding citation 1, item 2, Griffin’s unpreventable employee misconduct defense fails.

I
find
the Secretary has met h is
burden and prove n
a violation of the standard
cited at
citation 1, i tem 1 . This item is affirmed as a serious violation.

The violations of the cited standards
are not duplicative

Griffin
asserts
the two citation items
are duplicative ,
citing
Cleveland Consol idated , 13 BNA OS HC at
1118 .
(R. Br. pp. 18, 21-22).

T he Secretary contends that the citation items are not duplicative, as Griffin’s failure to ascertain by inquiry, direct observation or by instrument whether tie breaker SS41A, which connected electrically to the bus bar in the SS41B switchgear compartment, was energized was separate and distinct ,
from Griffin’s
failure to
prevent
employees
from
working near the energized bus bar in the SS41B switchgear compartment without first taking protective measures . (S. Reply Br.
pp .

1-3) .

I
agree.

In
Cleveland Consolidated ,
the Commission held
the
employer’s failure to
prevent employees from
working in close proximity to an
energized
part of an electric power circuit
before implementing protective measures
[ 29 C.F.R. § 1926.416(a )( 1) ] 26
and an employer’s failure to
ascertain and
advise its employees of the location of energized circuits and the hazards involved [ 29 C.F.R. 1926.416(a)( 3 ) ]
we re distinct violations. 27 Based on case - specific facts
in
Cleveland Consolidated , the Commission found the standards
were
duplicative only,
in part , as compliance with the two cited standards,
c ould
be achieved by t he same “protective measures , ” de-energizing the
live
circuit or using other protective means.

It found t he employer shall
ascertain and
advise its employee s
of the “protective measures to be taken” to avoid the electrical hazards ,
as required in
29 C.F.R. § 1926.416(a)( 3 ) , and the employer shall protect its employee against electric shock by “de-energizing the circuit and grounding it, or by guarding it effectively by insulation or other means,”
before permitting an employee to work
in proximity to an electric power circuit, as required by
29 C.F.R. § 1926.416(a)( 1 ) .
Cleveland Consol . , 13 BNA OS HC at
1118 .

In the instant case, Griffin failed to comply with bot h cited standards. Each cited s tandard
requires
separate, distinct
measures an employer must take to protect its
e mployees. The cited standards are not duplicative, except to the limited extent , that
compliance with both standards would have been achieved, in part,
through the single act
of effectively
de-energizing the circuit.

A v iolation of both cited standard s
is
found. The citations are grouped for penalty assessment, to reflect the relationship between the cit ed standards
and possible compliance through a single abatement measure .
See Miller Electric Co. ,
2001 WL 95797 , *5
( No. 99-1702 , Jan .
1, 2001)
(ALJ provid ed
a penalty reduction because of the overlap between the two cited
standards)
remanded
by Commission on unrelated grounds, 19 BNA OSHC 1666 (No. 99-1702, 2001) .

Penalty
and
Classification

Section 17(j) of the Act requires the Commission to give due consideration to four criteria in assessing penalties: the size of the employer’s business,
that
the gravity of the violation, the employer’s good faith, and its prior history of violations. Gravity is generally the primary factor in the penalty assessment. See
J. A. Jones Constr. Co. , 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993) .

The S ecretary classified
both citation items as
serious
for a
total
proposed penalty
of $14 ,000 .00 . A violation is classifi ed as serious
“ if there is
a
substantial probability that death or serious physical harm could result ” if an accident occurs.

Compass
Env tl. ,
Inc. ,
23 BNA OSHC
1132,
1136
(No. 06-1036, 2010)
aff’d , 663 F.3d 1164 (10th Cir. 2011) .
The hazard for each of the citation items was injury or death from electric shock. Here, an employee
was seriously inju red after his face contacted an
energized bus bar in
an electri cal
switchgear .

T he
serious
classification is appropriate.

T he recommended penalty amount
was based on
an
assessment
that
the gravity
of the violation
was high . T here
was no
good faith discount
because
a serious injury
had
occurred.
(Tr.
345-46 , 359 ).
T here was no penalty reduction for size because the company had
approximately 1,400
employees and
there was
no
modification for history .

(Tr. 345 ).

As discussed in the preceding section, th e citation
item s are grouped for penalty assessment, to reflect the relationship between the cit ed standards
regarding compliance .
I conclude
th at
a total p enalty
of $7,000.00
is
appropriate.

A
grouped
total
penalty of $ 7 ,000 .00
is assessed.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been made above. See
Fed.
R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are denied.

O rder

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

Citation 1, I tem 1, for a violation of 29 C.F.R. §
1926.416(a )( 1 )
and
Citation 1, I tem 2, for a violation of 29 C.F.R. § 1926.416(a)(3)
are
both
AFFIRMED as Serious
and a total
penalty of $7,000.00 is ASSESSED.

/s/ Carol A. Baumerich

C arol A. Baumerich

Judge , OSHRC

Date:
May15, 2017

Washington, D.C.

"

1
Serious c itation 1 , i tem 1
allege s
a violation of 29 C.F.R. § 19 26.416(a )( 1), as follows:
O n or about
October 18, 2014,
an employee received severe electrical burns while working in the electrical switchgear tie breaker compartment of SS41B. An energized bus bar operated at approximately 480 volts and was not protected from accidental contact. The Secretary
propose s
a penalty of $7,000 for this citation item
(as amended by Order dated December 21, 2015).

Serious c itation 1, item
2
allege s
a
v iolation of 29 C.F.R. § 19 26 . 416(a )(3) , as follows:
O n or about
October 18,
201 4 , the employer did not
ascertain, by adequate inquiry, or direct observation, or by instruments, the specific parts of the energized electrical switchgear tie breaker SS41A and SS41B electrical power circuits, which were not safely located or de-energized. Additionally, the employer did not adequately advise all employees of the locations of hazardous energized lines and of the necessary measures required to be taken to ensure that exposure to electrical hazards was eliminated. The Secretary
propose s
a penalty of $7,000 for this citation item.

2
The terms switchgear and substation refer to the same equipment . These terms
were used interchangeably at this worksite.

3
The contract between Griffin and Gilbane,
article 1.3
states, in part,
“The Trade Contractor (Griffin) expressly represents and warrant s to Construction M anager (Gilbane) that Trade Contractor hold s
special knowledge, tr a ining, and experience in such Work . . . . ” ( Ex. J-3 p. 3 ) .

4
In the interest of privacy, the injured employee’s name is not used in this
d ecision.

5
The job specifications are set forth in the document, “One Spartan Way and Two Contra Way Emergency Power Upgrade, Merrimack, NH, Specifications, Issued for Construction, August 22, 2013.” (Ex. J-1).

6
Square D manufactured the new switchgears for this project. Square D’s parent company is Schneider Electric. (Tr.
51,
246-47; Ex. J-4).

7
FEA
electrical engineer John Lane
was the project electrical engineer of record. (Tr. 141 -42 ;
Ex. J-4 p. 1;
Ex. R-2 p. 14).

8
See
Note
6
above.

9
Electrical foreman
Connerton attended “a couple” project meetings during the year-long project . H e did not attend a ny
meeting where MOP-51 was reviewed. (Tr.
73,
227).
Senior project manager
Pease only attended the first Fidelity project MOP meeting .
(Tr. 255).

10
Because CBRE was Fidelity’s agent and property manager at this worksite, in the record CBRE employees are sometimes referred to as Fidelity or FREC employees.

11
The
MOP-51
“Executive Summary”
described the
planned shutdown to switchgears
SS42A ,
SS42B , and
SS41B as follows:
“ S hutdown
SS42A, SS42B and SS41B install end section on SS41B relocate CH-1 from temporary breaker and terminate on breaker in new end section. In SS42B relocate PD4-1-2 from temporary breaker and terminate on breaker in new end section. Pull new emergency feeds from MES to ATS42A and ATS42B.”

(Ex. J-6
pp .
3,
9).
“ATS” is an automatic transfer switch.

(Tr. 76).

12
“Opening” a breaker means preventing electrical current from flowing through th e
breaker. “Closing” a breaker means allowing electrical current to flow through the breaker.
(Tr. 326).

13
After opening the breaker, Mr. Smith left the work area at Fidelity’s One Spartan Way building.
(Tr. 166).

14
Project foreman Piechocki provided MOP-51 to senior project manager Pease, corporate safety director Weider, and electrical foreman Connerton .

(Ex. J-9).
However, no Griffin manager reviewed MOP-51 to ensure safety compliance. (Tr. 85-86, 178-79, 182, 225, 249-53).

15
I find that project foreman Piechocki’s testimony reveals his understanding that Respondent’s No Live Work and Test Before You Touch policy was limited to just the electrical equipment he intended to contact during work. For example, Mr. Piechocki testified:

“[B]esides the main bussing, any of the wiring in that [SS41B] compartment, we tested that we were
going to come in contact with
in
the – that rear section.”
(Tr. 102).

“ If we know we’re going to come into contact with something
we are to - to test it.”
(Tr. 116) (emphasis added).

Regarding Respondent’s Test Before You Touch policy, when asked by Respondent counsel what areas he was supposed to “test before your touch,” Mr. Piechocki answered: “The areas that you tend to come in contact with.” . . . “ That you test anything that you’re going to touch, what you’re going to come into contact with. ” (Tr. 126) ( emphasis
added).

Further, Mr. Piechocki’s specific actions, on October 18, 2014, provide additional strong evidence that Mr. Piechocki
understood Respondent’s
No Live Work and Test Before You Touch policy to apply to electrical equipment that he intended to contact during work. Mr. Piechocki testified that he tested the “lugs” from which he intended to remove wires in the SS41B switchgear compartment, not other areas in that compartment. “I tested it for any voltage before I touched the lugs.” (Tr. 105) “[T]here was no energy on those lugs that we were going to be interacting with.”
(Tr. 152).

I do not find that Mr. Piechocki understood Respondent’s No Live Work and Test
Before
You Touch policy to apply to equipment or areas that Griffin employees might inadvertently contact during work. Mr. Piechocki’s limited testimony is this regard was elicited only after Respondent counsel directed Mr. Piechocki to read a bullet point on Respondent Test
Before
You Touch policy and posed a leading question. (Tr. 126-27; Ex. R-7). Mr. Piechocki’s testimony, on the question whether the policy applied to
areas of inadvertent
contact, was hesitant and uncertain. His answer
to Respondent counsel’s leading question is not credited.

16
When asked by R espondent counsel
if he
complied with
Respondent’s No Live Work
p olicy on October 18 th , Mr. Piechocki answered:

[F]irst of all, we followed the MOP. We had an MOP, the steps to follow that everyone agreed was the proper safe method. We thought we disengaged any energy into the substation. Put on the proper PPE and tested for any known power.

(Tr. 120; Ex. R-4).

17
Griffin attempts to show that Mr. Piechocki thought
that
the system was not energized because it was not yet “commissioned.” (R. Br.
p . 9). This argument is unpersuasive . Mr. Piechocki, Mr. Connerton, and Mr. Pease each testified that commissioning is the step at which a third party tests the system to be sure it is installed properly and in working order before turning the system over to the building for normal operations. (Tr. 73-74, 129-30,
149,
226, 331-32). Commissioning is a testing step and not relevant to whether or not a part of the system is energized. Because Griffin installed the new electrical equipment at the Fidelity
p roject, it was in the best position to know which parts of the system were connected and thus energized. I reject Griffin’s argument that the commissioning status of the system was relevant to energization.

18
See
Note
15
above.

19
Griffin’s safety program is discussed in the Unpreventable Employee Misconduct section below.

20
The Commission has held that “[w]here it is highly probable that a
Commission decision
[ will ]
be appealed to a particular circuit, the Commission
has
generally applied the precedent of that circuit in deciding the case
—
even though it may differ from the Commission's precedent.”  Kerns Bros. Tree Serv. , 18 BNA OSHC
2064,
2067
(No. 96-1719, 2000) .
See  29 U.S.C. § §  660(a)  and  (b).

21
Mr. Piechocki testified that he was unsure if the Test
Before
You Touch policy applied before a system was commissioned. (Tr. 73, 115, 161-62).

22
See
Note 16 above.

23
Griffin asserts that Mr. Piechocki’s testimony reflects his upset over the incident and not a lack of understanding the No Live Work / Test
Before
You Touch
policy . (R. Reply Br. p. 4). I disagree .

I find this testimony shows a general confusion of how and when to apply the No Live Work / Test
Before
You Touch
policy .
See
Note
17
above.

24
See
Note 15 above.

25
While Respondent contends that electrician Mr. J. violated the No Live Work / Test
Before
You Touch
policy
on October 18, 2014, that claim is contradicted by project foreman Piechocki’s testimony. Mr. Piechocki testified that he and Mr. J followed MOP-51 regarding the proper safe method of work that day and that pursuant to MOP-51 Mr. J was not tasked to test anything. This testimony contradicts Respondent’s claim that Griffin’s No Live Work policy was applicable to the work procedure set forth on MOP-51 and violated by Mr. J. See
Note 16 and accompanying text.

26
Cleveland Consolidated
involved
29 C.F.R. § 1926.4 00(c )( 1)
and
29 C.F.R. § 1926.4 00(c)(2 ) , the predecessor standards to
29 C.F.R. § 1926.416(a)(1)
and
29 C.F.R. § 1926.416(a)( 3 ) , respectively. When the Secretary
revised the electrical standards in Subpart K (Electrical) of Part 1926, the standards were re-designated as noted. Electrical Standards for Construction, 51 Fed.
Reg. 25294, 25308 (July 11, 1988) (to be codified at 29 C.F.R. pt. 1926).

27
In
Cleveland Consolidated ,
the Commission held that the employer’s failure to advise its employees of the location of the energized circuits and the hazards involved was a
de minimis
violation as the cable-replacement work the employees were performing was “routine” and the employees had knowledge of the location of the energized circuits and the hazards involved. Those case facts stand in sharp contrast to the facts in the instant case, where the work environment of Griffin’s employees at the Fidelity worksite was unusual and not routine. At the Fidelity worksite, Griffin’s employees did not control the breakers to de-energize the equipment they worked on. Griffin’s violation of
29 C.F.R. § 1926.416(a )( 3 )
was not
de minimis .